R v Laidlaw

[2023] NSWDC 163

District Court

New South Wales

Medium Neutral Citation:

R v Laidlaw [2023] NSWDC 163

Hearing dates:

19 May 2023

Date of orders:

19 May 2023

Decision date:

19 May 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 115 – 116

Catchwords:

CRIMINAL LAW – sentencing - offences of reckless wounding and affray – offence of common assault on a Form 1 attaching to the affray offence – relevance of schizophrenia and the circumstance of being a victim of childhood sexual abuse to offender’s moral culpability – whether Bugmy principles engaged - relevance of prior offences in respect to which offender was sentenced in the Children’s Court – applicability or significance of parity principle where co-offender sentenced in Children’s Court

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW) s 33

Crimes Act 1900 (NSW) ss 33B, 35, 93

Crimes (Domestic and Personal Violence) Act2007 (NSW) s 13

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Cases Cited:

Apulu v The Queen [2022] NSWCCA 244

Belviev R [2017] NSWCCA 36

Bridge v R [2020] NSWCCA 233

Bugmy v R (2013) 249 CLR 571

Camilleri v R [2023] NSWCCA 106

DS v R; DM v R (2022) 109 NSWLR 82

Dungay v R [2020] NSWCCA 209

Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61

Green v The Queen; Quinn v The Queen (2011) 244 CLR 463

Mandranisv R (2021) 289 A Crim R 260; [2021] NSWCCA 97

McCullough v R [2009] NSWCCA 94

Nasrallah v R [2021] NSWCCA 207

Perkins v R [2018] NSWCCA 62

R v Aala (unrep, 30/5/96, NSWCCA

R v Boney [2001] NSWCCA 432

R v Engert (1996) 84 A Crim R 67

R v Harris-Merchant [2021] NSWDC 501

R v Huynh [2000] NSWCCA 18

R v Katakouzinos [2020] NSWDC 115

R v Munshizada [2021] NSWDC 679

R v Stonestreet [2020] NSWCCA 212

Texts Cited:

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (ODPP)
Mr Z Laidlaw (offender)

Representation:

Mr P D Swaine for the offender (Counsel)
Ms K Thomson for the ODPP (solicitor)

File Number(s):

2022/00079071

Publication restriction:

Non-publication of the co-offender’s name in accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

EX TEMPORE REMARKS ON SENTENCE

Introduction

1. Mr Zeke Laidlaw, (the offender) is before the Court for sentencing following pleas of guilty entered in the Gosford Local Court on 21 February 2023 to one offence of reckless wounding (sequence 2) and one offence of affray (sequence 7). He adhered to those pleas at this sentencing hearing.

2. The offender has also acknowledged his guilt and asked the Court to take into account an offence of common assault on a Form 1 attached to sequence 7.

3. The details of each offence, the relevant statutory provision, their maximum penalties and standard non-parole periods (where applicable) are set out in the below table.

Offence	Statutory provision	Maximum penalty	SNPP
Reckless wounding (Sequence 2)	s 35(4) Crimes Act 1900 (NSW)	7 years’ imprisonment	3 years’ imprisonment
Affray (Sequence 7)	S 93C(1) Crimes Act 1900 (NSW)	10 years’ imprisonment	N/A

4. The offence on the Form 1, attached to sequence 7, carries a maximum penalty of 2 years’ imprisonment with no standard non-parole period.

Circumstances of offending    

5. The parties are agreed as to the following facts. Some of them refer to a co-offender (BS), who was sentenced in the Children’s Court. The significance of that sentence will be considered later in these remarks. Unless their conduct as individuals needs to be referred to, it is convenient to refer to the offender and BS collectively as the offenders.

6. On 18 March 2022, the five victims, Ryan Wareing, Ryleigh Wareing, Jaydee Wareing, Jackson Fozzard and Lily Turner, attended The Lakes Hotel at The Entrance. Without any disrespect and where appropriate, I will refer to the victims by their first names. The victims arrived at the Hotel between 7:00 – 7:30pm and left the Hotel sometime around 12:10am. As a group, they headed towards Ryleigh’s apartment on Duffy’s Lane, where they all intended to stay for the night.

7. As the group were walking down towards the promenade area of The Entrance, they came across the offenders. The offender was wearing a black cap and a red and grey spray jacket. The offender had a distinctive “mullet” hairstyle.

8. Jaydee and Lily were walking just ahead of the others in the group when one of the offenders had said something about money or wanting something. Lily thought the pair were intoxicated. Jackson laughed at the offenders and the group kept walking. Lily said to the offenders “have a good night.” Ryan told the offender and BS to “leave us alone.” The two offenders continued to follow the group.

9. Ryan turned around to the offender and BS and said “you better turn around and keep walking” in an attempt to get the offender to leave them alone. As the group approached the intersection to cross the road, the offender and BS followed them, saying “Come here what did you say?.” Ryan, Jaydee, Jackson and Lily all crossed the road.

Common Assault (on a Form 1 attached to sequence 7)

10. Ryleigh approached the offender and BS in an attempt to diffuse the situation and said something similar to “Hey were just trying to go home. It’s all good. Nothing but love.” Ryleigh then asked them, “Hey are you packing?”. The offender then grabbed the front collar of Ryleigh’s shirt and held her. Ryleigh put her hands up. BS grabbed the offender’s hand and pulled it off Ryleigh’s shirt. Ryleigh continued to talk to the two offenders as they crossed the road. They walked past Ryleigh towards the group.

Affray (sequence 7)

11. Once across the road, the offender and BS then turned their attention to Ryan. BS pulled out a baton and was seen on CCTV footage to hit the baton on the ground. The offender removed a knife from the front pocket of his jacket. Ryan estimated the knife to be about 25 centimetres in length, with a silver blade. Ryan stated that it looked like an ordinary kitchen/chef’s knife. Either the offender or BS yelled at Ryan, “yeah cunt, come on let’s go.”

12. To protect himself, Ryan picked up a nearby chair. Ryleigh put BS into a headlock and said “Drop the fucking bat” and BS dropped it straight away. Ryleigh then picked up the baton. BS got out of her headlock and began running away. Ryleigh then began chasing him.

Reckless wounding (sequence 2)

13. The offender ran at Ryan with the knife. The offender swung the knife at Ryan who swung the chair at the offender in response. Ryan started to back away and tripped over a nearby bench and fell onto his back. Ryan held his right arm up in an attempt to protect his face and head and the offender slashed his arm with the knife. Jackson then ran after Ryleigh, who was chasing BS. Jackson requested the baton from Ryleigh, who gave it to him. Jackson then began chasing BS with the baton in his hand, yelling at him. Ryleigh saw Ryan had a cut on his forearm with a significant amount of blood coming from the area. Ryan continued to swing the chair at the offender, causing the offender to fall to the ground.

14. Ryleigh then grabbed the knife and stuck the knife into the ground away from the offender. Ryan then gave Ryleigh the chair as the group walked away from the offender. The offender then approached Ryan with closed fists, wanting to fight Ryan. Ryan then picked up a nearby bin and hit the offender a couple of times. The offender and Ryan then exchanged punches until the offender was lying on the ground with cuts and bruises to his head.

15. Police arrived a short time later and placed the offender under arrest. The offender had visible injuries to his head and was bleeding. Jaydee showed police where Ryleigh had stuck the knife into the ground. Police photographed the knife at the scene (which appears as part of Agreed Fact 13) and seized the black Adidas cap worn by the offender.

16. The offender was taken to Wyong hospital and treated for lacerations to his head. After he was medically cleared to do so, he was taken to Wyong Police Station where he provided police with a DNA sample. Swabs were taken of the blood on his hands, his clothes were seized and photographs of his clothes, shoes, hands face and body were taken. His jacket and shoes both had blood on them.

17. As a result of the offending, Ryan suffered the following injuries:

1. a five-centimetre laceration to the right medial distal forearm. Subcutaneous tissue (fat) was visible through the laceration. The aspect of the wound was two millimetres. There was no muscle or tendon visible and no neurovascular damage.

2. a soft tissue injury to the fourth and fifth metacarpophalangeal joints, which resulted in swelling to the fourth and fifth finger of his right hand with pain to the area. Ryan’s arm, wrist and hand were x-rayed and there were no fractures or neurovascular injuries detected.

18. Ryan’s laceration required three stitches. He was prescribed analgesia as well as a precautionary tetanus injection. Ryan was discharged from hospital and was advised to see his GP in seven days to have the stitches removed.

19. As a result of his injuries, Ryan was initially unable to work.

Assessment of the objective seriousness of the offending

Sequence 2

20. For sequence 2, this is a species of personal violence offence. It is well-established that the main relevant considerations, when considering the objective seriousness of the offending, are: the extent and nature of the injuries; the degree of violence; the  nature of the attack and surrounding circumstances: McCullough v R [2009] NSWCCA 94 at [37]. I agree with the offender’s description of s 35(4) as being a ‘result-based offence’. Thus serious misconduct can fortuitously cause only minor effects whereas less serious conduct can cause grave harm. Consistently with the constraints of De Simoni, I am not sentencing the offender for grievous bodily harm inflicted upon the victim, or for offending that carries with it an element of specific intent.

21. It has been said that the offender’s mental state is a relevant factor, particularly if there is a degree of cognitive disturbance and an absence of premeditation: R v Aala (unrep, 30/5/96, NSWCCA. I agree that cognitive disturbance is a relevant factor, however, in my view, more modern authority indicates that the mental state, which is a matter personal to the offender, is assessed as part of the offender’s subjective case, even if there is no rigid overlap with the objective seriousness of the offending, since it relates to the offender’s moral culpability: see DS v R; DM v R (2022) 109 NSWLR 82 (“DS”) (and more recently, Camilleri v R [2023] NSWCCA 106).

22. This distinction is significant since much of the offender’s submissions directed towards the objective seriousness of the offending, and where this offending fell on the scale of objective seriousness, was affected by evidence of, and argument about, his mental impairment. I propose to defer consideration of that particular topic when addressing the offender’s subjective case.

23. The offender accepted that the nature of the harm, and especially to the victim’s forearm, was serious.

24. The Crown argued that the offending fell towards the mid-range of objective seriousness for this offence. The injuries sustained by the victim were consistent with his having his arm up in an attempt to shield his face and head. The subcutaneous fat indicated that the knife had penetrated his skin (CSP Act, s 21A(2)(c)). A more minor injury was sustained to the fourth and fifth fingers of his right hand. The victim was put out of work for a week and, because he was a subcontractor, he suffered a loss of income. As to the circumstances in which the offending occurred, the offender (with the co-offender BS) were both armed and were aggressors and instigators of violence. The victim (and his friends) was unarmed. The attack was unprovoked. It was the offender (and the co-offender) who approached the victim – not the other way round. The offender wielded his knife as if it was a sword, which would have elevated the victim’s ordeal. Even when he was disarmed, he continued to approach the victim, punching him and showing no regard to the victim after wounding him. Still, the attack was not planned or premeditated but was spontaneous.

25. I substantially adopt the Crown’s submissions on the objective seriousness of the offending. The victim’s main wound was serious in itself. Although the wound affected the victim’s arm, that was only because the arm was in the way of more vulnerable parts of the victim’s body. The victim had tripped and fallen onto his back, making him especially vulnerable to attack. The circumstances in which the wound was inflicted, including an unprovoked assault by a man apparently emulating a samurai warrior by wielding a long knife, would have added to the terror of the situation. I also adopt the Crown’s assessment of the conduct as falling towards the mid-end of the range (to the extent that such designation remains useful).

Sequence 7

26. I considered the offence of affray when sentencing an offender in R v Munshizada [2021] NSWDC 679 when I said (at [15], citations omitted):

“The offence of affray is one of a number of offences relating to public order which appear in Part 3A of the Crimes Act. It has been said that relevant factors going to the gravity of the conduct include the level of the violence used and the scale of the affray”.

27. In R v Harris-Merchant [2021] NSWDC 501, Bennett SC DCJ observed (at [44]) that:

“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”.

28. Other authority recognises that affrays arise in a variety of circumstances, including those which are premeditated (such as those between rival gangs) and those which break out spontaneously in response to unforeseen events (R v Huynh [2000] NSWCCA 18 per Hulme J (Spigelman CJ and Smart AJ agreeing) at [29].

29. Finally, in R v Katakouzinos [2020] NSWDC 115, Bourke SC DCJ observed that:

“28.… it is necessary in sentencing for an offence of affray to have regard to the level of violence involved in the entire episode rather than to focus merely on the conduct of an individual offender.

29. That, of course, makes sense because the essence of the offence of affray focusses on conduct arising from the event as a whole which would cause a person of reasonable firmness to fear for their personal safety. Regard should be had, not only to the nature of the violent conduct involved in the affray, but should also include matters such as its duration, the size of the area over which it occurred, whether any weapons were used, whether there was any planning involved and whether members of the public were present and the ages and vulnerability of any person exposed to the episode.”

30. The offender submitted that the subject affray was not premediated but was a spontaneous reaction to a perception that the victims were against him because of a mental impairment. I accept the submission that this offending was spontaneous and not planned.

31. The Crown emphasised that the offending featured the use of actual violence as well as threats of violence with a weapon. I pause here to say that I accept that threats of violence featured with the offender removing his knife. Further the offender assaulted the victim Ryan: this was after the act by which he wounded him. I interpolate that although the Crown submitted that he had assaulted another victim – Ryleigh – this was the conduct constituting the offence (sequence 5) on the Form 1, so it would amount to double counting to take this circumstance into account on the sequence in assessing the objective gravity of the offending. Shortly, I will explain my evaluation of the connection between the Form 1 offence and this offence.

32. The offender was “in the company” of BS (CSP Act, s 21A(2)(e)). His co-offender also had a baton - although there is no evidence to indicate the offender’s awareness of BS carrying a baton (by Agreed Fact 7, it appears that this had been concealed) – nevertheless, the combination of the offender’s knife and BS’s baton should be taken to have heightened the victims’ concerns.

33. I accept, however, the offending occurred in a public area, near residential houses and late night businesses. Fortuitously, however, it was late at night and not at a busier time of the day. But, in a sense, this would have added to the level of apprehension in the victims for their safety.

34. I find that the offending fell below the mid-range of offending, but it was still serious.

The offence on the Form 1

35. The offender accepted that, other things being equal, the existence of an additional offence may demonstrate the greater need for personal deterrence and retribution in respect of the primary offence (here sequence 7).

36. In Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 Spigelman CJ explained that additional offences are taken into account with a view to increasing the penalty for the primary offence and further explained how this arose because of the added weight to be accorded to personal deterrence and retribution.

37. As I will explain in a short while, although I consider that the offender’s moral culpability for his conduct generally is reduced, on account of his mental impairment, it moderates, but does not eliminate, specific deterrence and the consideration of retribution for the primary offences. It is in this way that the assault upon the victim (Ryleigh) correspondingly elevates specific deterrence and retribution as considerations of some weight for the affray offence.

subjective circumstances OF THE OFFENDER

Age

38. The offender was 19 years of age at the time of offending. He is approaching his 21^st birthday. An offender’s relatively young age at the time of offending is usually treated as a mitigating factor; at least where because of that age, the offender is not fully aware of the consequences of his offending. Young age can potentially benefit an offender in terms of an assessment of the seriousness of offending, reduced need for specific deterrence and elevation of prospects of rehabilitation and lesser weight accorded to general deterrence and retribution; and, finally, consideration of the adverse impact of the experience of punishment. However, that generalisation is tempered where, for example, the offender has poor prosects of rehabilitation.

39. The offender submitted that age and immaturity was a very important subjective factor that was relevant to the balance to be struck between deterrence and rehabilitation. However, I regard this submission as being somewhat in tension with the primary emphasis that the offender placed upon a mental impairment. I do not suggest that these mitigating circumstances are mutually-exclusive, in principle, but on the offender’s case of his engaging in ‘psychotic’ behaviour consistent with schizophrenia and auditory hallucinations, it is difficult to accept that the offending was caused by youthful immaturity. For someone whose conduct was caused by schizophrenia and auditory hallucinations, it would make no practical difference whether he was 19, or 29 years of age. These are more than developmental conditions associated with youthful immaturity. Put another way, it is the schizophrenia that impeded his awareness of the wrongfulness of his actions and if for reasons expressed elsewhere, this reduces the seriousness of his offending and his moral culpability, there need not be any additional level of mitigation on the basis of his age and immaturity.

40. In my view, where the consideration of age or immaturity has marginally more significance, beyond his mental impairment, is by elevating the significance of enhancing his rehabilitation in the sentencing exercise and recognising the added difficulty for a young man in his position and circumstances to deal with incarceration. It is in this sense that his age at the time of the offending is a mitigating circumstance.

Background

41. The offender was born in Sydney. His parents separated when he was 4 or 6 years old. He has seven siblings. It appears that he is closest to his elder sister and one other brother. The offender’s elder sister was essentially his mother figure from that very early age. The offender left school when he was in year 9.

42. Aside from working at McDonalds when he was 14, he has had little work in his adult life. He says he hopes to eventually become a truck driver.

43. The offender reported to Dr Chew, whose report I will shortly turn to, that he currently resides with his sister in Guildford, that he is unemployed, and in receipt of the Jobseeker allowance from Centrelink.

Mental impairment and Bugmy principles

44. The offender relied upon the psychiatric report of Dr Gerald Chew dated 13 May 2023. Dr Chew substantially relied upon history given by the offender. Dr Chew is a highly qualified and experienced psychiatrist. The offender reported to Dr Chew a long history of paranoia, thinking people were talking negatively about him; and acting on those thoughts when confronting people, and auditory hallucinations that were typically negative and commenting on his behaviour. The offender has a long history (for someone so young) of unstable affect, suicide ideation and suicide attempts. Earlier this month, he was scheduled under the Mental Health Act and admitted to Westmead Hospital with a self-inflicted wound (to his right wrist) for which he received surgery. The offender’s sister alluded to her own experience of witnessing acts of paranoia.

45. The offender also reported that he had been sexually abused in Juvenile Justice when he was 16 years old. He said that he was not comfortable providing details to his psychiatrist, although he did say that he currently had a civil claim on foot in regard to this matter.

46. The offender denied the use of cannabis or illicit drugs for the last 12 months. However, he did report that he had previously used MDMA and alcohol, typically on the weekends when he would get “wasted”; consuming around 15 beers along with MDMA. The offender is currently taking antidepressant and anti-psychotic medication, according to what he said to Dr Chew.

47. In relation to the offending the subject of this proceeding, the offender explained to Dr Chew that at the time of the offending, he had thought that the victims were “having a go at him” and were being negative. He said that voices he was experiencing at the time were yelling at him that the victims were talking about him in a negative manner.

48. Dr Chew opined that the offender presented with depressive and psychotic symptoms “in the context of” a prior history of sexual abuse. Dr Chew stated that his preferred working diagnosis was that the offender suffers from schizophrenia with ongoing psychotic symptoms with no substance abuse, despite reasonable doses of antipsychotic medication.

49. The Crown was somewhat critical of this: arguing that his views fall short of a formal diagnosis. That is so, but it is clear that as someone who is qualified to do so, Dr Chew is expressing an opinion. The Crown did not require his attendance to cross-examine him or called any competing expert to contest Dr Chew’s opinion.

50. Dr Chew opined that there was a causal link between the offender’s mental health and his offending behaviour. He stated that it appeared that the offender was actively psychotic at the time of offending which significantly impacted his judgment and behaviour. The offender’s psychosis led him to believe that the victims were “against him”.

51. I accept that, on the probabilities, the offender had a mental impairment, being schizophrenia, which contributed to his offending. The Crown conceded as much.

52. Dr Chew did not, however, specifically opine that there was any direct causal link between the offender having suffered childhood sexual abuse and the offending. Nor did he find that the childhood sexual abuse indirectly contributed to the offending by the circumstance that it led to the development of or exacerbated the schizophrenia.

53. The Crown contested that Bugmy principles were engaged.

54. The offender’s Counsel referred me to the Court of Criminal Appeal’s decision in Perkins v R [2018] NSWCCA 62 to argue that it is an unresolved question whether an offender who seeks to invoke Bugmy principles needs to establish a causal connection between the disadvantaged childhood and the offending before it could be said that there is a diminution in an offender’s moral culpability. An application for special leave from that decision was refused by the High Court.

55. Subsequently, the Court of Criminal Appeal considered the question in Dungay v R [2020] NSWCCA 209 (“Dungay”). In the leading judgment of N Adams J (Bell P – as the Chief Justice then was – and Davies J agreeing) her Honour suggested that it may not be necessary for such a causal link to be established, but even if it was not, this did not mean that evidence of childhood deprivation would not be given full weight in the Court’s synthesising of factors.

56. There is a further complication. The offender’s Counsel cited only the bare reference in Dr Chew’s report to the offender being sexually abused in Juvenile Justice when he was aged 16 as the evidentiary foundation for the application of Bugmy principles. There was no reference to other incidents of the offender’s childhood that were relied upon to sustain the suggested engagement of Bugmy principles.

57. Understandably, although not helpfully, the offender did wish to provide further details to Dr Chew; including, notably, whether the sexual abuse was a singular event or occurred on multiple occasions.

58. The complication is that it is also an unresolved question whether Bugmy principles may be engaged by reference to only a singular traumatic event, if that was what occurred. In this respect, in Nasrallah v R [2021] NSWCCA 207, where Bell P (as the Chief Justice then was, Price J agreeing) observed (omitting citations):

“11. An environment of “childhood deprivation” in which “abuse of alcohol and alcohol-fuelled violence” are endemic (the circumstances which were addressed in Bugmy) may be conceptually different from an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or psychological abuse. There may also be a significant conceptual distinction between circumstances of sustained sexual or other abuse of a child and a single instance of sexual abuse or attempted sexual abuse.Whether or not a single instance of sexual abuse or some other traumatic event strictly falls within the scope of the principles enunciated in Bugmy may be debated for, as has been observed, “while courts have applied the Bugmy principle in cases where offenders have had a wide range of adverse childhood experiences, in each instance, the circumstances of the offender’s deprivation occurred over a lengthy period of time and generally within the offender’s family”. As Simpson AJA said in Irwin, the “Bugmy principles … are concerned with the impact on sentencing of a history of disadvantage and deprivation” (emphasis added). The boundaries of Bugmy have not been clearly or definitively delimited.

59. At [21], Bell P observed (Price J agreeing) that it was unnecessary in the circumstances of that case:

“.. to consider the precise boundaries of the Bugmy principles including the extent to which the impact of traumatic events external to and not apparently associated with the offender’s upbringing and immediate or extended family environment (such as the applicant’s kidnapping by someone she met in a chat room) and the occurrence of a single traumatic event (in the present case, the attempted sexual assault by her uncle) engage those principles.”

60. In my opinion, the evidence, incomplete as it is, is such that it appears that the traumatic effect of child sexual abuse (whether that occurred once, or on multiple occasions) was external to and not apparently associated with his childhood upbringing, about which there was generally very little evidence (see paragraphs 24 – 27 of Dr Chew’s report and supplemented in only a minor way by the offender’s sister’s letter).

61. I do not find persuasive the offender’s Counsel’s submission that Bugmy principles are engaged merely because childhood sexual abuse is a substantial risk factor for the development of subsequent mental health problems. With all respect to the authors of the article cited in footnote 46 of the offender’s Counsel’s written submissions, this argument really requires an expert’s opinion to substantiate it. Dr Chew did not provide that opinion. I have already accepted that the offender has a mental abnormality which reduces his moral culpability.

62. Whilst I take into account the offender’s being subjected to child sexual abuse (whether that be once or on other occasions), on the evidence available to me, I do so only generally as part of the matrix of his subjective features generally and the general synthesising of all relevant considerations. This includes, relevantly, any special circumstance of hardship, which I will later consider in these remarks. I am not persuaded, on the probabilities, that there is a connection between a disadvantaged childhood and the offending which, of itself, would reduce his moral culpability.

63. If I am wrong, however, in finding that Bugmy principles were not engaged, it is important to note that the combination of these conceptually discrete circumstances would not necessarily indicate a more lenient sentence in any event.

64. First, in DS, a case where it was found that the offender had a mental impairment (coincidentally, also schizophrenia) and a dysfunctional background, the Court of Criminal Appeal (at [155]) rejected a submission that the sentencing judge erred by failing to expressly refer to Bugmy principles when he had elsewhere expressly referred to the offender’s mental condition. The Court of Criminal Appeal observed that:

“[155] The difficulty with this submission is that it attempts to divide the dysfunctional aspects of [the offender’s] condition, namely his disadvantaged background and his schizophrenia, and then assumes their impact on his moral culpability and the various sentencing factors are somehow to be separately tabulated …

[156] …… the structure of the sentencing judge’s reasons suggest that his Honour acknowledged the significance of a background of dysfunction but ultimately treated it together with DM’s mental illness in concluding that the weight to be given to general deterrence was reduced. It would have been artificial to separate them. There was no error in his Honour’s approach”

65. As I have indicated, it is difficult to ascribe any causal link between the traumatic effects of childhood sexual abuse (whether one or more incidents) and the offending which is separable to the causal effects of the offender’s schizophrenia upon the offending in a way that would indicate that they should be treated as discrete matters bearing upon the offender’s moral culpability.

66. Secondly, in cases where an offender suffers from a mental abnormality, where that is likely to continue (eg R v Stonestreet [2020] NSWCCA 212 at [33]]) and has suffered from a disadvantaged or dysfunctional childhood (Bugmy at [44]), it has been recognised that the mitigating effect of such considerations may be lessened and each of those considerations may correspondingly heighten the weight to be given to protecting the community. The concern is heightened where, as here, there has been serious prior offending.

67. Thirdly, there are cases where an offender has refrained from taking opportunity to take, or ceased taking prescribed medication, or even seek out such treatment, which would strengthen the inference of a continuing danger to the community (Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 at [46]). As to this concern, the Crown argued that it was not clear from Dr Chew’s report whether the offender was actually taking his prescribed medication or has been managing his condition whilst in the community. On the evidence as it is, I cannot find that he was not taking his medication; but, at the same time, cannot say that he was at the time of the offending.

68. In summary, I accept that his mental abnormality reduces his moral culpability and, in this way, the seriousness of his offending; that it did have a causal connection with the offending and moderates the weight to be accorded to general and specific deterrence, retribution and denunciation. As previously remarked upon, this factor indirectly also affect the question of whether and to what extent the severity of the sentence for the affray should be increased by reason of the offence on the Form 1. I will defer further remarks upon the significance of the consideration of protection of the community to when I consider the offender’s rehabilitation prospects and associated risks of reoffending.

Antecedents

69. The offender has a significant criminal history for a person of his age. Until now, he has been dealt with by the Woy Woy Children’s Court for a range of serious offences, including aggravated break and enter dwelling in company with an intent to steal between 8 February 2019 and 9 February 2019, aggravated break and enter, commit serious indictable offence on 20 May 2020 and 11 October 2018 and the assault of a law enforcement officer, inflict actual bodily harm on 28 December 2019.

70. In the Crown’s written submissions, the Crown emphasised that some of these offences occurred when the offender was on conditional liberty. That submission was not challenged by the offender’s Counsel in argument at the hearing.

71. He has an equally poor custodial history, in terms of disciplinary infractions relating to assaults and damage to property and disobedience to directions.

72. In its written submissions, the Crown emphasised that the offender had a history of using knives in the commission of offences. The offender’s Counsel also did not contest the correctness of that submission in argument at this sentencing hearing. If so, it is a matter that elevates the significance of specific deterrence notwithstanding the existence of a mental abnormality contributing to the offending (R v Engert (1996) 84 A Crim R 67 at 71, another case involving an offender suffering schizophrenia and auditory – and visual - hallucinations).

73. I accept the offender’s submission that his past criminal history is not a true statutory aggravating factor. Rather, I treat the record as disentitling him to leniency; manifesting as it does, relevantly, defiance of the law and law enforcement, and thereby elevating the weight to be given to considerations such as retribution, deterrence and the need for community protection. This, however, is to be viewed in the context of what I have said about the significance given to the age of the offender at the time of the offending.

Guilty Pleas

74. The offender pleaded guilty to the offences in the Local Court on 21 February 2023.

75. The offender’s Counsel submitted that the offender is entitled to a 25% discount for both offences. The Crown accepted that this was the appropriate level of discount in both cases.

76. A discount of 25% should be given for the pleas in both instances.

Remorse or Contrition    

77. The offender reported that he was ‘extremely sorry’ about his involvement in the offending. Dr Chew reported that the offender expressed “genuine remorse” in his interview and a willingness to engage in treatment. To a degree, the entry of the guilty pleas is one manifestation of contrition. In his elder sister’s letter, she referred to the offender being “more aware than ever” of his actions, which showed some insight.

78. Whilst Dr Chew’s opinion as an expert is to be respected, I agree with the Crown’s submission that there is little regard manifested in these generalised statements to the harm his offending caused to the victims. I also agree that there is little in the out of court statements to indicate what he is sorry for. Such limited contrition as he has expressed is of relatively little weight in the circumstances.

Rehabilitation Prospects

79. Dr Chew opined that the offender has ongoing psychotic symptoms (with no substance abuse) despite reasonable doses of antipsychotic medication. The Crown correctly observes that Dr Chew did not directly address the question of his risk of re-offending.

80. The offender told Dr Chew that he was willing to engage in treatment in the community, including regular mental health follow ups and abstinence from drugs. However, I am cautious in placing much weight on this given his history and limited contrition.

81. Dr Chew reported that treatment of the offender’s psychiatric conditions would include stabilisation of his mental state with medication and psychological therapy. He stated that he requires comprehensive treatment of Schizophrenia and that he would be required to attend Community Mental Health Treatment regularly. Dr Chew opined that treatment would reduce the offender’s risk of re-offending.

82. The offender’s Counsel alluded to the offender’s youth and his pleas as indications of enhanced prospects of rehabilitation.

83. Whilst I take those matters into account, they do not outweigh the offender’s past criminal history, his limited contrition, the concerns apparent from Dr Chew’s report that the offender still exhibits psychotic symptoms even with the current regime for medication and the serious nature of the instant offending, featuring an offender with schizophrenia having a dangerous weapon in his possession. It is somewhat speculative to accept that any increase in dosage of his medications will reduce his risk of re-offending. I accept also the force of the Crown’s argument abut a general concern about re-offending, but the more specific concern about his propensity to use weapons endangering the safety of the community.

84. I have noted that the offender is unemployed and, in view of his history of offending, and the nature of his mental impairment, it is hard, but nevertheless, not inaccurate, to say that his employment prospects appear somewhat bleak. Very little was said about the support he is receiving from his family, other than his sister providing accommodation to him. The offender’s sister noted that the offender participated in fitness training and had a good diet. Conspicuously, however, she did not mention active steps he had taken to rehabilitate himself through psychological counselling or treatment from a psychiatrist since the offending. The offender’s Counsel noted that since the incident of self-harm earlier this month, he complied with the request to contact the acute care team for counselling.

85. I find that his prospects of rehabilitation are no higher than guarded. This being so, significant weight needs to be given, in the sentencing exercise, to protection of the community.

Hardship

86. The offender reported to his psychiatrist that he had made a recent suicide attempt. He reported feeling very depressed and suicidal. He said that he was paranoid and hearing voices. The offender told Dr Chew that he had been previously told that he had ‘psychosis.’ The offender reported having 3 admissions to hospital for psychiatric reasons, once 3 years ago for slitting his wrists, once in June last year for psychosis and once for a few days prior to his recent suicide attempt.

87. The offender reported that he was struggling on a daily basis with low mood, poor energy, rumination abouts negative thoughts, low self-esteem, loss of confidence and poor motivation. He reported being constantly paranoid thinking that people were ‘being negative about him and having a go at him’. The offender stated that he heard voices everyday saying negative things about him and commenting on what he was doing. He explained that the other day he was convinced someone was moving things around his house and he left a note on the table for them. His sister told him that it was “in his head.”

86. Dr Chew expressed a view that treatment for the offender’s condition is more difficult in custody due to limited resourcing and the custodial environment. Based on his own experience, Dr Chew opined that incarceration is well documented to be detrimental to mental health and that custody would be harsher on the offender in comparison to other offenders without his mental health conditions. All of this may be true in principle, however, there is force in the Crown’s riposte that the offender’s mental condition is hardly unique amongst inmates and further, there was no direct evidence that the specific medication the offender needs will be withheld from him.

87. The Crown concedes that the offender’s underlying medical condition will make prison more onerous for him, in comparison with an offender without underlying conditions. The offender’s Counsel emphasised COVID restrictions in correctional centres. That may be so in principle, but there was no real evidence. I give that modest weight.

88. I accept that there is a serious risk that incarceration will have a significantly adverse effect upon the offender’s mental health condition and that this is a matter that is mitigating.

INSTINCTIVE SYNTHESIS

91. For both offences, I take into account the maximum penalty for the two offences as legislative guideposts and, in the case of sequence 2, the standard non-parole period.

92. I take into account the considerations in s 3A of the CSP Act; which, as is notoriously accepted, pull in different directions. During the course of these remarks, I believe I have covered most of the considerations. In summary, general deterrence, specific deterrence, retribution, denunciation and holding the offender accountable for his offending are all factors that have significant weight, albeit that they are moderated by the offender’s reduced moral culpability arising from his mental impairment. Because of his age, rehabilitation is important on that account, but that said, his rehabilitation prospects are only guarded. Most significantly, his mental abnormality, the circumstances of this offending and his past criminal history, including the use of prior weapons capable of posing significant risk to health and safety, materially heightens the importance of protection of the community in the sentencing exercise. Further, however, the sentencing has to take into account into account the harm perpetrated upon innocent victims in each instance (s 3A(g)).

93. The offender’s Counsel conceded that the s 5(1) threshold has been crossed, however, submitted that it is appropriate that the sentence be served by way of an intensive correction order. The Crown also submitted the s 5(1) threshold is crossed. I so find.

Parity

94. The co-offender, BS, was sentenced in the Children’s Court. For the offence ‘use offensive weapon in company with intent to commit and indictable offence’ (in this case, to intimidate), in company, contrary to s 33B(2) of the Crimes Act 1900 (NSW), for which BS received a good behaviour bond, without conviction, for a period of 10 months, pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW).

95. An offence of ‘stalk/intimidate intend to cause fear of physical harm’ (contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was placed on a Form 1 attaching to the principal offence.

96. The maximum penalty for an offence under s 33B(2) was imprisonment for 15 years (with no standard non-parole period).

97. The offender’s Counsel acknowledged that parity considerations do not strictly arise when comparing the sentence imposed on a co-offender, in the Children’s Court, given the differing sentencing regimes. Nevertheless, the circumstances of a co-offender’s sentence in the Children’s Court are not irrelevant when sentencing the offender (Belviev R [2017] NSWCCA 36 (“Belvie”) at [4], [36]-[37]; R v Boney [2001] NSWCCA 432 (“Boney”) per Wood CJ at CL (Grove J agreeing) at [14]).

98. In Belvie, in concurring observations, and after identifying the sentencing considerations applicable to adults under the CSP Act, Rothman J observed at [37]:

“…The terms of s 6 of the Children (Criminal Proceedings) Act requires the sentencing function to be exercised in accordance with the principles there prescribed, which include the equality of rights and freedoms; the need for children to bear responsibility for their actions but the requirement for guidance and assistance in relation thereto; the desirably of the continuation of education and/or employment without interruption; the need to have the juvenile residing in his or her own home; the need to assist in the reintegration into the community of the juvenile; and the need to sustain family and community ties. As otherwise explained in these reasons, generally, considerations of punishment and general deterrence are of lesser weight than in relation to an adult and the purposes of rehabilitation are of greater significance.”

99. Further, more generally, disparity may be justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 463at [28]; Belvie at [39].

100. The offender’s Counsel argues, first, that the objective criminality of both the offender and co-offender were comparable even if the offender is to be sentenced for different offences. Secondly, Counsel for the offender noted that the offence for which BS was charged was more serious in nature than sequence 2 for the offender. Thirdly, the offender was not that much older than the co-offender: the age differential was only 1 year and 10 months. He emphasised a decision of Apulu v The Queen [2022] NSWCCA 244 where a low age difference was treated as having significance.

101. The Crown submitted that there was a marked difference in the offences that the co-offenders were charged with, but also their respective roles. The offender was the main aggressor and the first to instigate physical contact with the victims – indeed the co-offender pulled the offender away when the latter grabbed the victim Ryleigh’s shirt. The co-offender was not involved in any physical confrontation with the victims. Further, the co-offender essentially backed off once released from a headlock; whereas the offender continued to assault Ryan even after wounding him.

102. As to the co-offender’s subjective circumstances, the Crown indicated that it had requested sentencing remarks for BS, but they were not available on the eve of the hearing. But the Crown indicated in its supplementary written submissions (MFI 2) that BS was on a better trajectory for rehabilitation and that this was apparent from:

1. having had the support of immediate family who were in Court;

2. having had gained employment;

3. having had drafted a letter to the Court expressing remorse and insight; and

4. having had commenced psychological treatment for depression and anxiety

103. On the offender’s first point, the harm that was sustained as a result of the wounding to a victim was of a markedly higher degree to harm sustained by the victims as a result of BS’s offending, which suggests to me that the offender’s conduct, on the reckless wounding offence was more serious than BS’s conduct. On the offender’s second point, notwithstanding the more serious nature of the offence for which BS was charged, the offender’s conduct was more serious than BS’s conduct. BS’s baton hit the ground. The threat posed by BS was much less than the offender: he did not strike anyone, was actually restrained by the victims and, once released from that, ran away; later (bizarrely) protesting his innocence (Agreed Facts 8 & 14).

104. On the last point, although there was some indications in the Crown’s submission about BS’s remorse and rehabilitation prospects (which appeared to be more strongly mitigating circumstances than those of the current offender), it remains the case that the information available for his sentencing was more limited. The Crown eventually indicated that BS had one prior serious offence. Further, the Court cannot assume that the sentencing facts applicable to BS were the same as those which the offender agreed to in this proceeding. I take into account the small age difference, but that is not a compelling factor.

105. Further, as was noted in Boney at [16]:

“.. a stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one.” 

106. The last observation was effectively applied by the Court of Criminal Appeal in Bridge v R [2020] NSWCCA 233 per Price J (Johnson J and Wright J agreeing) at [57].

107. Acknowledging the different sentencing regimes in this Court and the Children’s Court, and BS’s status as a child, and a lesser role in the offending, it does, with respect, strike me that the co-offender received a lenient sentence; especially when viewed in the context of the Form 1 offence attached to the offence for which he was sentenced (which necessarily was not quantified).

108. On balance, the parity principle cannot be fully engaged, but even if it was, I do not consider that the sentence I will shortly impose gives rise to a justifiable sense of grievance.

109. The indicative sentences (taking into account the guilty pleas and, for sequence 7, also the offence on the Form 1) are:

Sequence 2:      2 years and 6 months’ imprisonment

Sequence 7:      1 year and 9 months’ imprisonment

Totality

110. It may fairly be said that the two offences were part of a singular episode of criminal offending, such that an element of concurrency is warranted. The affray preceded the reckless wounding within a short period. Nevertheless, although the victim (Ryan) was common to both offences, the offences are distinct in nature and the penalty needs to recognise the discrete criminal acts and harm sustained by the victims in both offences and in my view, it is necessary that there be factored in a degree of accumulation before I arrive at an aggregate sentence which is intended to reflect his overall criminality.

111. In my view, contrary to the offender’s submission, the aggregate sentence should exceed the three-year period beyond which the option of serving the sentence of imprisonment by ICO becomes unavailable (CSP Act, s 68(1)). In this regard, the offender was released on bail after spending only a day in custody, so it is not a case whereby an ICO could be imposed notwithstanding that the term exceeds the statutory limit through the adjustment of the term to take into account the period in custody (Mandranisv R (2021) 289 A Crim R 260; [2021] NSWCCA 97 at 63]). The sentence will be backdated (by a day) to take into account that day in custody.

Special circumstances

112. The Crown conceded that a finding of special circumstances was open.

113. Having regard to his age, this being the first time will be in adult custody, and the need for the offender to obtain what he can to aid in his effective rehabilitation (which, as Dr Chew explains, may be somewhat problematic in custody), I find that there are special circumstances.

Sentence

114. Mr Laidlaw, please stand.

115. I sentence you to a term of imprisonment of 3 years and 2 months imprisonment commencing on 18 May 2023 and expiring on 17 July 2026. The non-parole period is 1 year and 10 months, which expires on 17 March 2025 after which you will be eligible for release on parole.

116. I direct that Dr Chew’s report be supplied to those responsible for the offender’s supervision.

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Decision last updated: 19 May 2023