R v Maea

[2019] NSWDC 656

District Court

New South Wales

Medium Neutral Citation:	R v Maea [2019] NSWDC 656
Hearing dates:	29 May 2019
Date of orders:	29 May 2019
Decision date:	29 May 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 4 years 3 months with a non-parole period of 2 years 6 months
Catchwords:	CRIME — Violent offences — Assault occasioning actual bodily harm SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Relevant factors on sentence — Purposes of sentencing
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health Act 2007
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) [2002] NSWCCA 518 Borkowski (2009) NSWCCA 102 Bugmy v R (2013) 249 CLR 571 Director of Public Prosecutions for the Commonwealth v De La Rosa (2010) 79 NSWLR 1 Markarian v R (2005) HCA 25 Muldrock v R (2011) HCA 39 R v McNaughton (2006) 66 NSWLR R v Qutami (2001) 127 A Crim R 369 Tepania v R (2018) NSWCCA 247 Veen v R No 2 (1987-1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Rodney Maea (Offender)
Representation:	James Meegan (Crown) Bryan Robinson (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2017/00194306

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Rodney Maea is now 30 years of age and when presented before me on Monday of this week, 27 May 2019, he pleaded guilty to two offences presented on an indictment.

2. The first contrary to s 35(4) Crimes Act 1900 charged that he on 25 May 2017 at Merrylands in the State of New South Wales did wound Nigel March (a pseudonym) and was reckless as to causing actual bodily harm to Nigel March.

3. Count 2 to which he pleaded guilty was contrary to s 58 Crimes Act 1900. It is charged that on 25 May 2017 at Merrylands in the State of New South Wales he assaulted Superintendent Michael Archer (a pseudonym), being a police officer, in the execution of his duty.

PENALTIES

4. The maximum penalty specified for the offence shortly described as reckless wounding is imprisonment for seven years with a standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The period specified is three years.

5. The provisions introducing standard non-parole periods are set out in Part 4 Div 1A of the Act amended after the decision of the High Court of Australia in Muldrock v R (2011) HCA 39. Section 54A of the Act provides that the standard non-parole period for an offence is that which is included in the table to the provisions. It also provides that the standard non-parole period represents the non-parole period for an offence in the table that falls within the middle of the range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B provides that the standard non-parole period is a matter to be taken into account when determining appropriate sentence without limiting the matters that are otherwise to be taken into account. It also requires that the Court record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.

6. The objective gravity of the offending, both in respect of the assault police officer charge and the reckless wounding charge, will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offences without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending and bringing to account relevant factors found in s 21A of the Act except for those that are essential elements or integral characteristics of the offence.

7. The fixing of the non-parole period is a part of the task whereby the Court determines the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical stage guilty process of reasoning when assessing an appropriate sentence but must identify all other matter, bearing upon the question of the appropriate sentence in the process of intuitive synthesis discussed for example by McHugh J in Markarian v R (2005) HCA 25. In the determination of sentence for offences for which there is a specified standard non-parole period it and the maximum penalty are legislative guideposts for the sentencing Court along with other established sentencing practices and by reference to matters identified as relevant in s 3A, 21A and 22 of the Act.

8. The objective gravity of the charge of reckless wounding, looking at the misconduct itself without reference to the circumstances that are personal to the offender, does fall about mid-range, perhaps a little lower.

9. The offence of assaulting the officer in the execution of duty I would put toward the low end of the range.

10. The reckless wounding charge though, as was pointed out by the Crown, involves the use of a weapon. The attack was unprovoked and random upon the victim. The offender had minimal contact with the victim before striking the blow and the location of the injury although relatively minor was such that there was a very real risk of more serious consequences. When I synthesise those matters into the facts which I have by way of the agreed statement and the video recording captured from closed circuit television I have no difficulty coming to my finding with regard to where on the scale of seriousness the offence falls, noting however that it is always a matter of judgment and minds will often differ when determining where an offence might rest upon the scale.

11. It does not follow though that the standard non-parole period of three years or something proximate to it would be applied in a given case. The decision with regard to that is reached upon the process as discussed by McHugh J to whom I have referred.

12. There is further guidance provided in more recent times in the Court of Criminal Appeal in Tepania v R (2018) NSWCCA 247 by Johnson J and in particular beginning at para 110 in the judgement where his Honour summarised the propositions that now arise as a result of the amended legislation to which I have made reference. His Honour addressed the purpose of amendment and then in par 112 wrote:

“In sentencing for an offence, (whether or not a standard non-parole period), a Court should make an assessment of the objective gravity of the offence applying general law principles so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment. It was recognised through Common Law that motive or emotional stress which accounts for conduct is always material to the consideration of an appropriate sentence.”

13. His Honour thereafter provided references to authority. He then went on to discuss in para 113 the concept of moral culpability which has been used in various decisions including Veen v R No 2 (1987-1988) 164 CLR 465 where it was noted that mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability. His Honour referred to the decision of the High Court of Australia in Muldrock v R which I earlier cited where it was noted that an applicant’s limited moral culpability may mean that retribution and denunciation do not require significant emphasis. His Honour also referred to Bugmy v R (2013) 249 CLR 571 dealing with deprived circumstances through formative years that also would impact upon the assessment of moral culpability and at 118 his Honour referred to the Director of Public Prosecutions for the Commonwealth v De La Rosa (2010) 79 NSWLR 1 which included observations by McClelland CJ at CL, that where a person’s mental health contributed to the commission of an offence in a material way the person’s moral culpability may be reduced.

14. The discussion by Johnson J in para 112 that I have quoted may be read to expand what I understand to be the provisions in the legislation that I have sought to summarise. As recognised by his Honour general law principles apply in addition to the specific provisions contained in Part 4 Div 1A of the Act and thus, as I said, the standard non-parole period which must be identified in the analysis I am providing does not of itself require specification of such a period. The determination of what would be an appropriate non-parole period depends upon a synthesis of a range of factors all relevant to the assessment of sentence.

15. I propose an aggregate sentence in this case and that will be after I have determined an appropriate sentence that would have been imposed were these offences standing alone.

16. Because the reckless wounding offence is one that carries a standard non-parole period I am required to specify the non-parole period I would have imposed in respect of that charge but by providing an aggregate sentence there will be no need for me to do the same in respect of the assault officer in execution of duty charge.

FORM 1 OFFENCE

17. Also, I am asked to take into account an offence on a Form 1, a charge of causing damage to the window of the police vehicle in which the police officers were at the time they saw the offender shortly after the wounding. The offence is contrary to s 196(1)(a) Crimes Act 1900. The maximum penalty specified for the offence is imprisonment for seven years. On Monday the offender confirmed that the offence is to be taken into account and he admitted that he is guilty of that offence, and thus when I determine the sentence for the offence of assaulting the officer in execution of duty, that being the principal offence in which the additional offences are to be taken into account, I must determine the extent to which the sentence that would otherwise have been identified for the offence of assault is to be increased to reflect that I have taken the further offence into account.

18. The sentences must be identified that will provide appropriate punishment for the reckless wounding and the principal offence of assault officer, but subject to the consideration that will be required to determine what indicative sentence should be imposed in respect of the assault charge taking account of the Form 1 offence. Moreover, the extent to which there should be accumulation and concurrence must be decided, to result in an aggregate sentence that reflects appropriately the totality of the misconduct without exposing the offender to more punishment than he deserves in the circumstances.

19. Having availed himself of this arrangement for the Form 1 offence, he has gained a considerable advantage. He does not face separate punishment for the Form 1 offence. But, by taking the course that he has, he has provided utility and he must have the benefit of that in the determination of the matter. I am aware of the guidance provided by Spigelman CJ in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) [2002] NSWCCA 518.

20. The additional offence of damage to the motor vehicle will impact upon this indicative sentence for the assault officer charge, in which it is to be taken into account. There will be an appropriate increase in the sentence which would otherwise have been applied to that principal offence standing alone, reflecting the need for greater weight to be given to the aspect of personal deterrence arising from the extent of misconduct and the community‘s entitlement to retribution and denunciation for this additional offence.

21. I have not overlooked that all of this misconduct occurred within a relatively narrow compass, beginning when the offender as depicted in the closed-circuit television approached his hapless victim and struck him with the scissors, inflicting the wound the subject of the charge.

THE PLEAS OF GUILTY

22. Although he pleaded guilty on the first day the trial was listed to commence, the Crown concedes that by reason of the history of negotiations and the ultimate charge that it accepted, for resolution of the matter, the utility provided by the offender’s pleas of guilty should attract a discount of 25% in accordance with the decision of the Court of Criminal Appeal in Borkowski (2009) NSWCCA 102, in particular the judgement of Howie J.

PRE-SENTENCE CUSTODY

23. He has been in custody for a significant period of time, in gaol awaiting the outcome of these proceedings for some 700 days. Before that, he was detained in a mental health facility for a period of 28 days, until he left, granted some leave, without returning. It is agreed between the parties that I should commence the aggregate sentence on 2 June 2017.

THE FACTS

24. The statement of facts records that about 8am on 25 May 2017, the victim Mr March was standing outside a café on Merrylands Road in Merrylands. He was engaged in conversation with café workers and the recording depicts him walking about within the field of vision, in a check brown and white shirt, engaged in that past time.

25. The offender is then depicted arriving at the scene. He walked past, paused, and then approached the victim and within a very short compass, struck the blow, armed with scissors, inflicting the wound. The image is quite confronting I must say It.

26. He then disengaged and walked away but turned and again walked in the direction from which he came, until he left the field of vision. At that point the victim was out of view but in the same general direction. It is not entirely clear what happened after then and nothing is captured on the closed-circuit television to indicate any further contact. Thus the matter is determined upon what occurred within the range of the images presented in the recording.

27. The facts provide a little more detail of the attack. These record that the offender stood about two metres from the victim and mumbled something and continued to mumble as he reached into his satchel, using his left hand, and retrieved the scissors, a photo of which is included in the bundle at annexure A. He moved closer to the victim in an aggressive stance and stabbed the victim, which is the offence charged in count 1. He appeared to remonstrate a little more and then walked away towards Merrylands train station.

28. As I said, there as described provides more detail than is immediately obvious from viewing the event which occurred over a very narrow timeframe.

29. About this time, Superintendent Archer and his partner Chief Inspector Phillips drove past the location and saw the offender on the roadway. Chief Inspector Phillips saw the victim holding his neck and the superintendent saw the offender in a verbal exchange with the victim. It must be that this was at some point proximate to the blow that was struck. In any event, the superintendent stopped the vehicle. The offender moved onto the footpath at Merrylands Road.

30. Inspector Phillips approached and said, “Mate, what’s going on?” The offender looked at the Inspector and said, “Fuck off cunts, come near me and I’ll smash you”. He then walked off, east along the footpath. As the offender approached an outdoor café, he picked up a glass ashtray and then turned around toward the Inspector and motioned to throw the ashtray and yelled, “Fuck off cunts” before continuing toward the intersection of Memorial Avenue. He then continued on to Miller Street. Superintendent Archer drove into Miller Street and stopped the police car about six metres from the offender.

31. As he was getting out of the vehicle, via the driver’s door, the offender threw the ashtray directly toward it. It struck the driver’s door window and shattered it. That is the Form 1 offence attaching to the second count. The offender then ran into a laneway, followed by Inspector Phillips and other police. When Inspector Phillips was about 20 metres from the offender, he saw the offender had something in his left hand. He yelled, “Drop the knife. Drop the knife”. The offender ran on to the southern footpath at Miller Street, outside the Merrylands RSL and then dropped a pair of scissors from his left hand. This was the weapon used for the wounding.

32. The offender then turned around and faced Chief Inspector Phillips and Inspector Casha and Superintendent Archer, who were also at the location. Chief Inspector Phillips yelled, “Get on the ground”. He repeated this but the offender did not comply. He then made several motions to run at Chief Inspector Phillips, causing him to spray the offender with Oleoresin Capsicum Spray to the face, which resulted in the offender laying down on the ground. Chief Inspector Phillips and Superintendent Archer then attempted to restrain the offender. There was a struggle. During this, Superintendent Archer dropped his knee into the right shoulder area of the offender and took hold of his right arm. The offender resisted and pulled away. This caused pain to Superintendent Archer’s right thumb. This is the conduct upon which the second count is brought.

33. The facts as described might have excited a challenge to the charge of an assault; the conduct might have been seen to be consistent with resistance as much as anything. But, the offender has pleaded guilty to the charge and has thereby admitted all of the elements of the offence upon which sentence is to be determined. I agree with the submissions made on behalf of both parties that the objective gravity of the offending in these circumstances should be seen to be toward the low end. The injury to Superintendent Archer is not further described.

34. The victim was treated for his injury, which was a one centimetre area of irregular laceration, with a triangular area of lost skin and a wound which was inflamed. This was treated by a nurse and the victim was given pain relief and antibiotics.

35. The offender was taken into custody but scheduled under s 22 Mental Health Act 2007. He was delivered to Cumberland Hospital and was admitted. He was given day release on 21 June 2017, a little less than a month later, but failed to return. At 7.30am on 29 June 2017, he was spoken to by police in Stocklands Mall at Merrylands and was arrested without incident. He was taken to Merrylands Police Station, to be interviewed but he declined that opportunity. He wanted the police to note however, that he was sorry for his actions.

THE OFFENDER

36. The offender was born in 1988. As I said, he is now 30 years of age. He has a record of antecedents that reveal a pattern of violent behaviour. In December 2006 in Sutherland Local Court, he was fined for having custody of an offensive implement in a public place and damaging property. On the same occasion, he was fined for offences of smoking in a train or railway property. It is not entirely clear which, possessing something intended to cause damage to property and being in a restricted area without a ticket. On 14 February 2008 for robbery in company, he was sentenced to imprisonment of three years, with a non-parole period of one year and six months. In June 2010, for common assault, he was placed on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999, for a period of two years.

37. In December 2011, in the District Court at Parramatta, he suffered imprisonment for assault occasion actual bodily harm in company, reckless wounding while in company, assaulting a police officer in execution of duty, assault occasioning actual bodily harm in company of others and damaging property and affray. These resulted in sentences of imprisonment commencing on 20 September 2010. There was partial accumulation of the sentences imposed. They were respectively, 18 months, four years, 12 months, 18 months; the damaging property offence was taken into account, and then finally 18 months for the affray.

36. The non-parole periods specified for the reckless wounding offence was two years and it appears that subsumed the remaining custody for the less serious offences. In January 2017 for goods in custody, he was convicted in his absence and in due course, fined when brought to court. In October 2018 for damaging property, he was convicted without penalty but ordered to pay compensation. In November 2006, failing to have a train ticket, he was fined. In the same month, for damaging and defacing property, he was fined. In February 2008, for robbery in company he was sentenced to three years imprisonment, with a non-parole period of one year and six months.

37. In March 2009, for assault occasion actual bodily harm, he was imprisoned for 12 months with a non-parole period of nine months. Then finally in June 2009, for assault occasion actual bodily harm, the conviction and sentence was confirmed in the District Court in Sydney, that being an appeal from the sentence of 12 months that was imposed in March of that year. He has spent, already a significant period of time of custody, beginning in December 2006. He entered custody on 3 December and remained there until 1 December 2008; then on 13 January 2009 through to 11 January 2010; from 11 January 2010 through to 23 March 2010; then on 20 April 2010, 21 April 2010, from 23 April to 29 April 2010 and 21 May 2010 to 11 August 2010; from 22 September through to 19 December 2015 and then ultimately from 29 June 2017 until the present time.

38. Apart from any other consideration in this case, I am conscious of the risk of institutionalisation that might well arise in respect of this offender, in light of the amount of time he has been required to stay in gaol, blended with the psychiatric challenges to which I shall come after lunch in the further discussion of his subjective case.

39. Before I continue past the antecedent report that I have summarised, I will note that the penalties to which I have referred as the maximum penalties are those are available to this Court, but I have not overlooked that the offences, at least one of them, was capable of being dealt with in the Local Court, that is the damage to the motor vehicle and I think that is so with regard to the other two as well.

40. Both of the offences upon which sentences are to be imposed could have been dealt with in the Local Court if the matter was less serious than it is, in which case the maximum penalties are limited by the jurisdiction; subject to the opportunity a Magistrate has to accumulate sentences past the two year maximum period for each of the offences. That said, the circumstances of the misconduct, the antecedent record of the offender, and notwithstanding what I believe to be a compelling subjective case by reason of his mental health, would require that the matter be disposed of at this level.

41. Turning now to the question of the offender’s mental health, there can be no question that he is very unwell. I have a report included in the Crown bundle written by a Professor David Greenwell, a well-known and respected psychiatrist, on 12 June 2009. He formed an opinion, upon a clinical assessment made of the offender, informed by instructions from the Principal Registrar, Justice Health, Court Attendance Notices for the proceedings in respect of which the report was sought, and the Facts Sheet, the criminal history and a medical record from Justice Health Volume 2.

42. At that time in the offender’s history he was 20 years of age and had no fixed place of abode prior to his arrest. He was on parole at the time of the offence that required the preparation of this report. He reported that he had a mental illness and was taking Epilim, mood stabilising medication, together with Zyprexa, an anti-psychotic and Abilify an anti-psychotic medication. He had been off his medication for some two weeks during the December January period and claimed that he was always also smoking cannabis at the time. He said that he had “lost it” and “spun out” with a sense of anger toward the world.

43. His history, recorded then, was a diagnosis of schizophrenia in 2006 when he was in custody and treatment administered by way of Epilim, Zyprexa in combination. He had in 2008 attended the Marrickville Community Mental Health Service on one occasion only, and he was admitted to the Long Bay Prison Hospital for three months in 2006 and 2007. He was seen by psychiatrists in custody; on 23 August 2008 he was suffering from schizophrenia. His past medical history was summarised in the report together with a drug and alcohol history which included the consumption of alcohol from the age of 11, including binge drinking. He was at the time of this report drinking up to 48 drinks each week. He began cannabis at the age of 11 years and then began experimenting with Ecstasy at the age of 18. He denied use of amphetamine, heroin or cocaine. He had not attended any drug or alcohol rehabilitation programme at this stage.

44. His mother died from cancer when he was nine years of age. She had no psychiatric history or history of drug abuse. He reported a good relationship with her. He came to Australia with his siblings and father. His father committed suicide in 2002/2003. His father he said was an alcoholic. The offender is the youngest of five siblings. He has an older brother who committed suicide and another who has been diagnosed with a major psychiatric illness. He has had little, if any, contact with his siblings. He was born in Tonga. He was excluded from the home of his uncle at aunt at some point because of his misuse of alcohol and cannabis. His schooling was inadequate although he reached year ten. He had very limited capacity. He worked in scaffolding for a period of time but lost his job due to absenteeism. As at 2009 he had not worked in the labour market for some four years.

45. He was diagnosed with schizophrenic disorder, poly-substance abuse, a personality disorder with anti-social features. And the doctor deferred to three other features of the then current list of diagnoses available within the context of mental health. The conclusion reached was that at that time there were no reasonable grounds to believe that the offender was suffering from a mental illness or mental disorder as defined within chapter three of the Mental Health Act 2007 and thus he did not require admission to a psychiatric hospital. There was no finding that he suffered from a developmental disability but he did suffer from a major psychiatric illness, namely schizophrenic disorder, against the history of poly-substance abuse. He was then without a home, suffering from mental illness without a support system, misusing alcohol and drugs and non-compliant with his psychiatric treatment in the community. In custody his mental health needs will be met by Justice Health. Should he be released, the report concludes, he should continue with psychiatric follow-up in his local community which will be necessary.

46. On 22 December 2016 he was admitted to St George Hospital for psychiatric treatment. He was to be discharged on 20 January 2017 and the discharge summary with which I have been provided in his case speaks of the medication upon which he was commenced, under which his thought disorder diminished and he presented as polite and co-operative. He went on leave for a half hour but returned after eight hours having lost his way. He bought a bottle of wine but did not consume it. His leave was cancelled from the hospital for four days during which he remained calm and co-operative. He was still with difficulty regarding accommodation. Options were then discussed in anticipation of his discharge. He was given further leave but did not return after three days and could not be located. He was discharged as “lost” in due course.

47. There is a discharge summary for 25 May 2017 until 26 June 2017; this is from Cumberland Hospital. He was given unescorted leave for half an hour as a trial but he failed to return, and he was later discharged whilst he remained absent without leave. He was prescribed Clopixol nightly by way of tablet or capsule and the same drug in a greater quantity by injection for a two week period, the last administration of that was on 21 June 2017.

48. The next report in time is from the Registrar of Psychiatry from the Western Sydney Local Health District written on 7 June 2017. Again, 28 years of age; surviving on CentreLink benefits without a home; living on the streets. There is a discussion of his past admissions, a diagnosis of paranoid schizophrenia and substance misuse disorder. He had a memory of having been admitted to St George Hospital and being administered some sort of depot, possibly Paliperidone; that must be a reference to the injection of Clopixol to which I have referred.

49. He presented with lack of interest in conversation, a measure of hostility, guardedness, a blunt inappropriate affect. He was found to be floridly psychotic in the context of medication non-compliance and poly-substance misuse. There is nothing to indicate the source of that information regarding the misuse of drugs. This was recorded in respect of the current admission where he had been taken into custody pursuant to s 22 Mental Health Act 2007 presenting in a grossly dishevelled, ill-groomed, and malodourous state evidencing self-neglect. This by implication must be the admission that followed his arrest after the crimes with which he was charged and upon which I am to impose sentence.

50. His psychotic features identified were paranoid persecutory delusions mainly relating to the treating clinicians, suspicious of their intentions and the medications they wanted him to take. He exhibited social detachment withdrawal. He refused to allow those treating him to examine his enflamed and possibly infected finger. In the course of his presentation he accused nurses and other patients of backstabbing and conspiring against him but the opinion offered is that he was voicing only a fraction of his persecutory perceptions. He was highly disorganised and thought disordered, he exhibited incoherent speech which often featured considerable poverty of content. His reasoning processes were irrational and exhibited some loosening of associations with the deficiency of goal-directed thought streams. There was evident deficiency in spontaneous speech reflecting paucity of thought and even thought blocking at times. He expressed the belief that strangers were talking about him, he had limited insight into his condition and his judgement was severely comprised. He was commenced on regular psychotropic medication which resulted in relevant improvement in his clinical presentation. A compulsory treatment order on discharge will require close attention to complications that might arise from his current non-adherence to his medication. At the time of the report he was continuing to display psychotic features with persisting paranoid ideation and impaired reality testing capacity. He expressed the view that he did not believe he was mentally ill reflecting the critical lack of insight into his condition and he persistently failed to acknowledge the gravity of the incident that led to his admission. The recommendation is in the following terms:

“Mr Maea’s current condition is such that he remains at significant risk of harm to others as well as to himself, due to the nature of his recent digression, delusions, self-neglect, substance abuse and poor judgment. Furthermore, he is at significant risk of chronic decline in his general functioning in the community due to his diminished insight into his condition, paucity of appropriate social support, networks and persistent non-compliance.”

53. The recommendation of the treating team was a six week involuntary treatment order, in default of which there were significant risks of chronic functional deterioration, misadventure, risk to reputation, harm to others, deterioration of mental state, descent into treatment, refractory forms of his condition and self-harm. An involuntary treatment order would require attention to treatment to alleviate destructive symptoms and to adjust medications as required.

54. In his case was tendered a report from Dr Sathish Dayalan written on 27 August 2018, the most recent assessment. This speaks of his relationship with Mr Maea, his homelessness prior to arrest and that he was detained at the Metropolitan Remand and Reception Centre at the time of this assessment. His psychiatric history is summarised including his admitted history of non-compliance with medication. His account of the offence is discussed in the following terms:

“Mr Maea had been released from custody a few weeks prior to his arrest. He said that he had not continued on his medications following his release. He had had a relapse of his psychotic symptoms including auditory hallucinations and persecutory beliefs. He added ‘I was schizing out’. He said that he did not know the victim but had believed that he was going to hurt him. He also added that he had been experiencing hallucinations that had commanded him to hurt the victim.

He claimed that he been carrying scissors for his nieces and nephews who attended school.”

55. His current health is then discussed including that he is receiving intramuscular injections of anti-psychotic medication in addition to oral medication for psychosis. He was feeling all right he said, sleeping and eating well, communicating with other inmates, watching television, playing cards and engaging in physical exercise. He denied experiencing auditory hallucinations or feeling persecuted at the time of assessment, he denied anxiety, but it is accepted that he was apprehensive about the outcome of the court hearing. All of this supports the proposition that properly medicated and in a controlled environment he presents less risk to the community consistent with what was contained in the report to which I have just referred.

56. His drug and alcohol history is discussed in terms similar to what has been already provided including his misuse of alcohol and cannabis. He said he has tried crystal methamphetamine but did not develop a habit for it because he did not like the effect it had on him. He denied use of other illicit drugs. His personal family history is discussed and his assessment of fitness to stand trial is explored. He underwent a mental state examination, he was found to be fit to take part in the proceedings. The psychiatric opinion appears at p 5 and following and then at p 6 the following passages appear:

“Mr Maea presents with evidence of a cognitive impairment and this is likely to impact upon his ability to make a very able defence. Nevertheless, he would be regarded to have the sufficient capacity to make a defence and make it known to the Court.

Mr Maea’s cognitive functioning would be significantly impaired by a relapse of his acute psychosis. However, if he were to continue on his medication and abstain from use of illicit substances, he is unlikely to suffer an acute relapse that would render him unfit during the course of a trial.

Despite some deficits in his cognition secondary to his schizophrenia, I am of the opinion that Mr Maea would be fit to stand trial on the balance of probabilities. As stated earlier, if the Court would allow for regular breaks and his defence counsel regularly consulted with him to assess his understanding of information presentation, that would greatly assist Mr Maea’s participation in court hearing.”

57. Mr Maea had not been compliant with his psychiatric medication around the time of the offence and reported to have been experiencing psychotic symptoms.” (My emphasis)

58. There is then reference to the documents from the Cumberland Hospital and what was found then and the assessment of his poor state of mental health with persecutory delusions and disorganised behaviour.

CONSIDERATION

59. Although it is not said expressly one would not overlook that there might well have been available to this offender, should he have chosen the opportunity, an argument with regard to the state of mental health at the time of the crime. I am not satisfied that the defence of mental illness in accordance with the decision in R v McNaughton (2006) 66 NSWLR would have been a successful one but there was scope to argue it. He has chosen to abandon that opportunity and face the consequences of his wrongdoing, pleading guilty to the charges and asking the Court to take into account the additional offence. Although he has not given evidence before me I am satisfied, with I believe appropriate circumspection in accordance with the decision in R v Qutami (2001) 127 A Crim R 369, that he has demonstrated contrition and remorse in the attitude he has taken to these proceedings and the course he took on Monday.

60. His prospects for rehabilitation must be very guarded.

61. I have no doubt from the material that I have that he would sincerely wish to change the life that he has so far led and not put himself at the risk that he attracted on the day of the commission of these offences but that sincerity is not matched with prospects, unfortunately.

62. I accept that he is a very unwell man in keeping with the reports that have been tendered on his behalf and in the Crown case. This is a matter that engages the decision of the High Court of Australia in Veen No 2. The risk that he poses to the community should he choose not to remain compliant with his medication does not put the Court in the position of increasing what is otherwise a proportionate sentence determined against the objective gravity of the misconduct synthesized with the subjective material tendered on his behalf, but it does inform the extent to which the Court must impose a term of imprisonment that will provide as best it can protection to the community.

63. The Crown has argued strenuously against a finding that there are special circumstances, but I disagree with the submission. It achieves very little in my judgement simply to lock this man up for as long as possible when he has demonstrated in a controlled environment that he has the capacity to comply with medication and manage the burden with which he is afflicted. The sentence I am intending to propose today will be in excess of three years and accordingly he will not be automatically entitled to parole at the expiration of the non-parole period, he will have to demonstrate to the Parole authorities that he is less of a risk to the community that he has demonstrated in the past.

64. I find that there are special circumstances because he is in need of assistance in the community to find an appropriate place to live where he will have access to a compulsory treatment program that will no doubt be imposed by the Parole authorities at the point of release.

65. Should he not comply with the conditions of parole that the authorities will put in place, of course he will be simply taken back into custody, held there until he has exhausted the overall sentence that I will impose today. I have reviewed once again the judgement of Johnson J in the case to which I earlier referred Tepania v R ibid because helpfully his Honour has provided an analysis of cases dealing with as such as this offender, including Veen No 2, Bugmy, to the extent that it assists, and Engert wherein the Chief Justice of New South Wales at the time, Gleeson CJ, discussed the counter balancing that is required bringing into account the purposes of sentencing which are now articulated in s 3A Crimes (Sentencing Procedure) Act 1999.

66. I have also reviewed the guidance provided by McClellan CJ at CL in De La Rosa.

67. The Crown submits that this is a case where general deterrence must be given significant weight; it attracts some weight I agree but I am not satisfied that this offender is one who is an appropriate vehicle to publish to the world that misconduct such as this will attract gaol. It is an important consideration however in respect of the need he has to maintain his treatment program and remain adherent to the medication that the doctors will prescribe for him from time to time and that is the extent of its limited role in this case. I also need to structure this sentence to provide hopefully for his deterrence to see that he does not come back in to the criminal justice system, the prospects of which though remain higher than any prospects of rehabilitation unfortunately from the history he has so far demonstrated.

59. There is a need to protect the community from him and thus the sentence and its structure is designed to do what it can in that regard. So too with regard to the promotion of his rehabilitation to make in accountable and to denounce the misconduct and to recognise the harm done both to the police officers who were there to protect us and the victim who suffered the blow with the scissors. Of course the misconduct upon which he engaged is the product of his impaired mental health which in turn was the product of his failure to adhere to his medication in circumstances where he was homeless and living on the street.

SENTENCES

69. I have applied a discount of 25% to each of the sentences that I have selected for the offences upon which sentence is to be imposed. In the case of the offence of reckless wounding upon the application of that percentage there was an additional 15 days in the result, which I have abandoned leaving a sentence in years and months.

70. For the offence of assaulting an officer in execution of duty and taking into account the additional offence of damage that was caused to the motor vehicle the sentence I find appropriate for that is imprisonment for 1 year and 6 months and I have certified a Form 1 to confirm that I have taken that additional offence into account.

71. The offence of reckless wounding the sentence I identify as appropriate for that is imprisonment for 3 years and 4 months including a non-parole period of 2 years and 6 months.

72. I shall impose an aggregate sentence commencing on 2 June 2017. I specify the non-parole period of 2 years and 6 months as the appropriate non-parole period in this case and that shall expire on 1 December 2019. Thereafter he will be eligible for release to parole. The overall sentence of 4 years and 3 months will expire on 1 September 2021. The orders then are: the offender is convicted of each of the offences to which he pleaded guilty; the indicated sentences I have partly accumulated to achieve a head sentence of 4 years and 3 months commencing on 2 June 2017, including a non-parole period of 2 years and 6 months, to expire on 1 December 2019.

73. I intend to leave the exhibits on file in this case for the purpose of the parties should they require them, they are to remain with the court file, also to be available to the people responsible for his care while he is in custody and in preparation of his parole once he reaches that point for an appropriate treatment program to be put in place for him.

74. Mr Maea, you’re eligible for parole on 1 December this year but it’s up to you to demonstrate that you ought to have parole and then you’ll be I expect under close scrutiny until the expiration of the overall sentence but you’ve got to stay compliant with your medication and don’t go anywhere near prohibited drugs because otherwise you’re going to be in gaol until September 2021.

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Decision last updated: 12 November 2019