R v Mason

[2014] NSWDC 380

District Court

New South Wales

Medium Neutral Citation:	R v Mason [2014] NSWDC 380
Hearing dates:	06/03/2014
Decision date:	06 March 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Sentenced to a term of imprisonment of 3 years with a non parole period being 1 year and 4 months. Form 1 matters taken into account
Catchwords:	Criminal - wound with intent to cause grievous bodily harm, subject to conditional liberty, Aboriginal offender, Form 1 matters, plea of guilty.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Attorney General’s Application (No. 1) of 2002, (2002) 56 NSWLR 147 Bugmy v R [2013] HCA 37 R v Callaghan (2006) 160 A Crim R 145 Muldrock v R (2011) 144 CLR 120 Munda v R [2013] HCA 38 Neal v The Queen [1982] HCA 55 R v Thomson and Houlton [2000] NSWCCA 309
Category:	Sentence
Parties:	Director of Public Prosecutions - Crown Dwayne Mason - Offender
Representation:	Counsel: Director of Public Prosecutions - Crown E Oates - Offender
File Number(s):	2013/00010390

Sentence

1. HIS HONOUR: Dwayne Mason appears today for sentence in relation to an offence to which he pleaded guilty on 18 September 2013. An indictment was presented alleging against him that he on 8 January 2013, at Matraville in the State of New South Wales, wounded Courtney Lyons with intent to cause grievous bodily harm. To that charge he pleaded ‘not guilty’, but he pleaded ‘guilty’ to the alternative charge that he on the same day to the same place recklessly wounded the same person. This is a crime contrary to s 35(4) Crimes Act 1900. It carries a maximum penalty of seven years imprisonment, it has a standard non-parole period of three years imprisonment.

2. The offender when he committed this offence, the facts of which I will deal with shortly from an agreed statement of facts, was on parole. He had been released to parole on 20 December 2012 thus he had been on parole at the time of the commission of the offence barely 18 or 19 days, I will deal with the circumstance of his living conditions in that period, but as the Crown has pointed out, and is readily conceded, the commission of an offence whilst subject to parole particularly after recent release with the prisoner giving the parole authorities no practical opportunity to assist him is a significant aggravation of the offending in the context of the provisions of s 21A(2) Crimes (Sentencing Procedure) Act 1999.

3. The matter on the Form 1 which will need to be taken into account is an offence of assault occasioning actual bodily harm. This was an offence as the facts reveal committed on the same victim at the time of the commission of the principal offence. This is an offence contrary to s 59(1) Crimes Act 1900 and if prosecuted separately would require fixing of a sentence by regard to a maximum penalty of five years’ imprisonment. This sentencing exercise involves quite a number of technical issues which I have taken into account, some of which I will deal with later in the judgment, some of which I propose to deal with at the commencement of the judgment before I delve into the facts and the evidence available to me.

4. Firstly, the plea of guilty was entered as I have pointed out in discharge of an indictment pleading a more serious offence. The plea of guilty was entered as I understand it after several days of negotiation and was entered two days after the matter was listed for trial. The plea of guilty thus was not entered at the first reasonable opportunity. The accused had been committed for trial but in the context of the accused pleading to a more serious charge and the character of the negotiations as I would understand it from the way in which the matter now comes forward to me, with one matter on a Form 1, and having heard carefully the submissions of both defence and the learned Crown, who was not involved in the negotiations I hasten to say, I have determined that in accordance with the guideline judgment of Thomson and Houlton the discount to be accorded to the prisoner for the utilitarian benefit of his plea of guilty is 15%. I must say in that regard, in fairness to the prisoner, my understanding of the matter from the way the agreed facts are drafted given what apparently is some lack of cooperation from the victim who is the prisoner’s life partner, the prisoner’s plea was of considerable value insofar as I said the victim’s cooperation with the prosecution authorities at least at first instance was not complete.

5. In relation to Form 1 matters, I am required to consider the guideline judgment of the Court of Criminal Appeal in Attorney General’s Application Number 1 of 2002, (2002) 56 NSWLR 147, and particularly the observations of the learned Chief Justice between paras [18] and [44] but not including all of those paragraphs. His Honour for the Court pointed out that the fact that there are matters to be taken into account on a Form 1 means that greater weight should be given to the need for personal deterrence and the community’s entitlement to extract retribution.

“The entire point of the process is (usually) to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal offence for sentence stood alone.”

6. His Honour pointed out that it was wrong to suggest that the additional penalty should be small, sometimes it will substantial depending upon the character of the principal offence and the character of the matters on the Form 1. However, the court was prompt to point out that the sentencing process is only concerned with the principal offence not to determine appropriate sentences for the matters listed on a Form 1. But, in fact, to see the principal offence if it is appropriate to do, as it is here, in the context of any matter or matters identified in the Form 1. It is clear on the facts of this matter that the matter on the Form 1 is part of the context of the offending in relation to the principal offence. It is very related in time. It is a separate offence but the criminality involved in it is very much subsumed into the criminality and the moral culpability of the prisoner in relation to the principal offence.

7. That having been said one could not ignore the character of the offending in the assault occasioning actual bodily harm, giving weight to what the Court of Criminal Appeal said in the guideline judgment as to require deterrence and retribution to be given greater weight than they may otherwise be given when sentencing for the primary offence. Of course, there are limits to that and I have taken into account in the context of the totality of the offending and the intimate connection of the events. I will deal with the prisoner’s version of events in the psychiatric report shortly as it may be considered in the context of the agreed facts.

8. I earlier mentioned that the prisoner was on parole at the time of the offending in respect of a sentence imposed upon him of three years with a non-parole period of 18 months that non-parole period expiring on 20 December 2012. I have earlier pointed out that that is a very significant aggravating factor.

9. The offence of reckless wounding has a standard non-parole period, of course. The issue the appropriate approach to sentences with a standard non-parole period was made clear by the judgment of the High Court in Muldrock v R (2011) 144 CLR 120. I need not go to that judgment beyond noting the terms of the judgment between [17] and [29]. The High Court in that judgment, of course, was very much concerned with the old provision s 54B(2) that required the court “…. to set the standard non-parole period as the non-parole period for the offence unless the court determines there are reasons for setting a non-parole period that is longer or shorter.”

10. Part 4 Division 1A Crimes (Sentencing Procedure) Act was amended by legislation on 29 October 2013. The effects of those amendments are discussed in a discussion paper circulated to judicial officers, at least, in special bulletin 5 of January 2014. The learned author, Mr Donnelly, has pointed out that the amendments that now are reflected in s 54A(2) and s 54B(2) evince an intention that the standard non-parole period is not to have determinative significance in the sentencing exercise as was indicated by the High Court in Muldrock v R. Section 54A(2) provides that:

“For the purposes of sentencing an offender the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taken into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

11. Section 54B(2) states that:

“The standard non-parole period for an offence is a matter to be taken into account by the court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.”

12. Thus, in considering the relevance as of the standard non-parole period to the sentencing exercise as now the legislation requires and the context of whatever can be surmised from the High Court decision of Muldrock, one is concerned with only the objective circumstances in reaching a decision in that regard and, of course, one must then turn to relevant mitigating factors that arise and what might be described as the “subjective” circumstances as well as consideration of s 44 Crimes (Sentencing Procedure) Act 1999.

13. In this matter, I have made a determination that there are ‘special circumstances’ pursuant to that latter provision for two reasons. One is that the sentence I am to impose will be by definition partly accumulative upon the balance of sentence arising out of the revocation of the accused’s parole after his return to custody on 11 January 2013. The other relevant matter arises from the very helpful report of Mr Simon West, City Community Corrections Office Sydney. Mr West I have known for the best part of 35 years. He is without doubt one of the most experienced Probation and Parole Service’s officers probably still serving who does not hold a senior administrative responsibility. His assessment of the offender in the context of the special circumstances issues that arise is that notwithstanding the revocation of his previous parole order he may benefit from a further period of supervision that would allow his behaviour in the community to be monitored and to give some support to him in helping him to address what will be difficult issues given the pattern of behaviour that he has developed in recent years. This opinion of Mr West in the context of all of the evidence, including the criminal history of the prisoner, persuades me that the offender needs an extended period of supervision in the community to assist him to adjust to community living and to address issues relating to his drug dependency, his drug abuse, his anger management, or his lack of anger management, and his relationship with his partner that in my view can only be provided by professional guidance and advice. The period of the balance of parole that I foreshadowed will be sufficient in my view for him to take up the opportunity if he wishes to take it. Of course, he previously did not take up that opportunity.

14. I have mentioned the fact that I would turn to the objective facts. The agreed statement of facts includes a great deal of material which I need not quote setting out the basis upon which the Crown sought to prove its case in the context of what I understood to be a reluctant complainant particularly in the nature of hearsay representations made by the complainant whilst relevant events were fresh in her memory that would have identified the offender as the person who injured her. The prisoner had, as I said earlier, been released to parole on 20 December 2012. Apparently, at this stage he, originally from the South Coast, had his partner living or she was living at least of her own motion in Sydney. But he did not see much of her it would seem because he went on what he claims to be a two week bender of drug abuse particularly abuse of speed.

15. The complainant went around to the home of a mutual friend, as I understand it, living in Anzac Parade Maroubra. The complainant was then living with the prisoner’s son who is her son in Matraville. She was allowed into the home to retrieve her keys from the offender. She took the offender’s bag and took the keys out of the bag and then she tapped the offender to wake him up. When he woke up the complainant said to the prisoner, “Why do you have to sleep at every cunt’s house?” This clearly was a reference to the fact that the prisoner had not been home after 18 months in custody, establishing a proper relationship with her and her son. The demeanour of the offender is described then to have changed. Apparently, he had a knife in his possession, he hit her and stabbed her left arm with the knife. He held his hands around her throat choking her and stabbed her on the back of her left shoulder during this assault.

16. When she was examined at a nearby medical centre. She walked to the medical centre. She was taken by ambulance to the hospital. She had five reddening marks with signs of early bruising over her throat consistent with what is described as manual strangulation and two wounds, one to the back of her left shoulder area and one on the back of her left upper arm. They were treated at the hospital as I understand it with sutures. She was not hospitalised and she had on ultimate examination a laceration 1.5 centimetres long on her left shoulder with subcutaneous tissue visible and a laceration 2.5 centimetres long on the left upper arm with subcutaneous issue visible and some blood oozing from that wound. There is some suggestion of the fact that the victim had not realised that she was injured. But be that as it may, it is clear from the material contained within the agreed statement of facts and the representations made by the complainant that the offender’s conduct was not planned or deliberate. In fact, the Probation and Parole officer described it in context as “impulsive” or that the offending would have appeared to “occur on impulse.”

17. The prisoner has given a version to the psychiatrist which I cannot accept. It seems to me to be a case of self-justification, although in fairness to the prisoner he is not a sophisticated man. I do not believe it is a fictitious story meant to deliberately put people off the true determination of what occurred. The prisoner had been abusing drugs and had taken some Xanax to calm himself down apparently having not slept for a number of days before being interrupted in his sleep by the victim. He said to the psychologist, “I woke up and was swinging the knife around, I thought it was Max. I was stressing out, I thought Max was coming back to get me, my brain just snapped.” What he is referring to is the fact that a man called Max had abused his host at the residence in Anzac Parade where he was staying and he felt threatened by Max and the knife was there for his self-protection.

18. Even if he had been in a deep slumber and had been woken up and had not quite got his bearings and even when he initially lashed out he may not have appreciated that it was the complainant, although I very much doubt that that was true given that she spoke to him, by the time he got his fingers around her throat he must have known it was her. Self-evidently, that would be so. He was familiar with her. He had lived with her off and on since he was 14 years of age. There could have been no question that this attack upon the victim which occurred over a relatively short period of time did not involve him understanding the victim was his partner. The reports, both the psychiatric and the Probation and Parole report, reflect the fact that the prisoner has a very poor insight into controlling his violent impulses and this is such a case.

19. But having said that when one considers the character of the wounds in the context of dealing with the principal offence, when one considers the minimal degree of consideration before he lashed out, the impulsiveness of it if that is the correct expression, when one considers the victim not being permanently disabled or seriously disabled or disfigured, albeit that she was clearly wounded, this offence was below the middle range of seriousness. But, again, in considering the appropriate sentence for this matter all matters considered not just the objective facts and the subjective matters there is to be factored in, of course, that related to it, intimately involved with it, was a separate offence involving the prisoner placing his hands around the neck of the victim.

20. The prisoner’s criminal history does not entitle him to any particular leniency. It shows offending as a child back in 2004. The prisoner I point out being born in May 1987 and at the time of the offending he would have been 16 years of age and 17 years of age when dealt with in the Children’s Court. He is now, of course, 26 years of age about to turn 27. He is thus old enough now to take responsibility for himself.

21. He has findings of guilt in the Children’s Court for assault occasioning actual bodily harm and damaging property and since becoming an adult he has been convicted of destroying and damaging property and receiving a community service order; escaping from police custody for which he was fined, it must have been a pretty minor matter; receiving a suspended jail sentence for damage to property which was revoked on call-up and required him to serve a sentence of eight months with a non-parole period of four months that sentence commencing as I would understand it on 4 October 2008. He has been convicted as an adult of possessing drugs.

22. At the Bega District Court in 2009 he was also convicted of aggravated breaking and enter and commit serious indictable offence knowing people therein for which he was sentenced to 18 months imprisonment with a non-parole period of ten months with various conditions of supervision, and aggravated breaking and entering and committing a serious indictable offence with the same circumstance of aggravation pleaded for which he received the same sentence. His criminal history also includes driving offences of various types; conviction for common assault at Penrith Local Court for which he received six months imprisonment and a conviction importantly at the Sydney District Court on 14 December 2012 of aggravated entering dwelling with intent to inflict actual bodily harm for which he received a sentence of three years and for which he was on parole when he committed the offences with which I am concerned.

23. He has also been in prison for being carried in a conveyance without the consent of the owner and has convictions for drug possession and the like. Those matters speak for themselves in the context that I have outlined. But in every person’s lifetime and circumstances there is other material to take into account, another side to the story to explain in part where the prisoner now stands.

24. He is an Aboriginal man from the South Coast town of Moruya. His mother had a number of partners and he was a person clearly brought up in a very disadvantaged community with very disadvantaged circumstances dwelling upon him. He may have had an undiagnosed condition of ADD in the opinion of the psychiatrist whose report I will refer to shortly. He witnessed acts of domestic violence as I may have mentioned and he was shovelled around between aunts and grandparents, not uncommon for young Aboriginal people. The dispossession and displacement of Aboriginal people over many many years evidences, itself, most starkly in the circumstances of individuals coming to courts allegedly committing criminal offences.

25. He became a binge drinker in his mid-teens and developed a dependency on various drugs particularly cannabis. He had problems at school with his education and left with his school certificate. He has had some work as a roofer, as an apprentice butcher, he has been involved in the fishing industry. He has also had various periods of unemployment. In the report prepared by the Probation and Probation Service relying not just on the history that he has given them but records that go back to his first supervision by the Service in 2007 when he served community service. His supervision in the past has been assessed as best ‘borderline’ and at worst ‘unsatisfactory’. He has had parole order revoked on two occasions, 2010 and 2013, and as I said his parole was revoked when he was arrested in relation to the current matter and he is now serving the balance of his sentence.

12. I might digress just for one moment to go back to the technical issues that arise here. As has been pointed out by the parties I have got a discretion as to what I should do in terms of “backdating” if at all any sentence I impose. Given the fact that he has been in custody serving the balance of sentence and given the fact that I must take into account as an aggravating factor pursuant to s 21A(2) the breach of conditional liberty.

13. I have given the matter serious consideration particularly in the context of the observations of Simpson J in the New South Wales Court of Criminal Appeal case of Callaghan handed down in 2006. The matter, of course, is constrained by the terms of Part 4 of the Crimes (Sentencing Procedure) Act and there are some recent decisions which deal with that aspect of the matter. But in the context of not having the power to prospectively commence the sentence and also in the context of an endeavour to avoid the relevant double dipping of which her Honour spoke I have determined, with the revocation of parole effective from 11 January, that I should date the sentence from the date that he pleaded guilty, that is, backdate the sentence from today but to ensure that the sentence commences before today’s orders are made.

14. The psychiatric report also deals with these matters of history. I have mentioned his relationship with the victim. As I said earlier he has known her according to the history that he gave the psychiatrist since he was 14 years of age. She became pregnant to him when she was 16 years of age and she had their child who is seven years old at this point when she was only 17 years of age. They obviously struggled in a range of ways in the context of social dislocation and no doubt great economic pressure. The prisoner should understand, not that he may be listening to anything that I say, but his continual abuse of alcohol and drugs and his violence towards his wife only puts further pressure upon her and on the welfare of his child. He must understand that unless he is prepared to take responsibility for himself and become a responsible parent he can inevitably look forward to a time in 20 years’ time when he might be sitting at the back of this court or some court like this and his son may be sitting in the dock where he currently sits relying upon, as mitigation, the suffering that he had from a father who was a drug abuser and constantly in gaol. He might reflect upon what future he wishes for his son when he is released to parole.

15. Recently, the High Court in Bugmy v R [2013] HCA 37 discussed the relationship of Aboriginality to the sentencing of offenders. I do not propose to get into the rationale of the judgment because it was concerned with particular issues raised on the grant of special leave that do not apply here. The High Court in Bugmy, however, noted a number of matters which are pertinent to this sentencing exercise. It rejected a submission of the appellant that the court should take judicial notice of the systematic background of Aboriginal offenders as it was antithetical to “individualised justice” (at 41). But it also went onto make this observation, in the view of the majority:

“Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices but to recognise this is to say nothing about a particular offender. In any case in which it is sought to rely on an offender’s background of deprivation and mitigation of sentence it is necessary to point to material tending to establish that background.”

30. One might have thought ultimately that was a matter of common sense. Their Honours, however, in Bugmy reaffirm what had been said by Wood J in the 1992 decision of Fernando, and also reflected upon the fact that, as their Honours expressed it in the judgment, that the disadvantages of Aboriginal people was a matter to be relevantly taken into account if the evidence was available that the court in sentencing an offender must provide individualised justice to that offender.

31. Many years before the decision in Bugmy and the related decision of Munda concerning an appeal from the West Australian Full Court, Chief Commissioner Elliott Johnson QC concluded in the final report of the Royal Commission into Aboriginal Deaths in Custody:

“It is important that we understand the legacy of todays’ history as it helps to explain the deep sense of injustice felt by Aboriginal people their disadvantage status today and the current attitudes towards non-Aboriginal people in society.

In this way it is one of the most important underlying issues that assist us to understand the disproportionate detention rates of Aboriginal people.”

32. In Munda the Court approved what Justice Eames had said in the Victorian decision of Fuller Cust (2002) VR 496, that the application of the principles enunciated by Justice Brennan in the earlier decision of Neal v The Queen that a factor relevant to sentencing which arises from an offender’s Aboriginality is not:

“overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race (I am using the word in the judgment) should be ignored.”

33. On the other hand in Munda the Court went on to point out that mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of penalty that is disproportionate to the gravity of the incident offence. It is also worthwhile pointing out of course in Munda that that was a very very serious case of domestic violence where the High Court was very keen to point out that the victim was an Aboriginal woman and Aboriginal women are entitled to the same protection of the law as Aboriginal offenders. However, in particular communities it might be argued the High Court held that:

“General deterrence is little rational claim on the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised and alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of this conduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crime, especially crimes of passion.”

34. Now I hasten to say of course in this matter I have not been given particular evidence about the prisoner’s community. Although I am familiar with South Coast Aboriginal Communities in a range of ways. But what I do accept relevant to this offender is that he is a young Aboriginal man, he has grown up in Aboriginal communities and he has lived a life of considerable disadvantage which has in many respects fashioned his attitude to his partner, has influenced his dependency upon drugs and may well given that the sense comprising effect of being a witness to domestic violence influenced his approach to anger management and the like.

35. With regard to Dr Furst’s report, he does not diagnose any history of mental illness and there is no evidence of any major mental illness, putting aside the possibly undiagnosed condition of ADD which has no doubt if it existed impacted upon the capacity of the prisoner to achieve any form of decent educational standard. He determines from the history of offending and behavioural problems and the like that the offender meets the criteria for a ‘childhood conduct disorder’ and he probably has met the criteria for a diagnosis of ‘anti-social personality disorder’. His heavy drinking and cannabis and amphetamine abuse is consistent with a substance use disorder.

36. His counsel in his helpful submissions, all of which I have taken into account, sought to see these matters in a more positive manner than perhaps they might likely be assessed. These matters as diagnoses of conditions that are available under ‘DSM 5’ criteria are all pointers to an incapacity of the offender to control himself socially and in other ways and a likelihood of acting out violently and in other ways contrary to the law.

37. He states in his opinion that his offences are more likely a product of his general propensity to be easily angered and become violent. His lack of positive role models, his impulsivity and the effects of chronic substance abuse including methylamphetamine. He also felt that his sleep deprivation, his ingestion of Xanax and his emotional upset on the day he accepting as I would understand the doctor’s report the version given by the prisoner, were also contributing factors to his violent outburst with stabbing his partner.

38. Even though I do reject the account given by the prisoner of his realisation of the victim being his partner rather than somebody else, that gives me no basis for rejecting other aspects of the history given by the prisoner, nor does it in the context of the agreed facts permit me to reject his account of acting impulsively without planning as I have pointed out.

39. The problem however in relation to the prisoner is that in the context of having committed offences whilst on parole and in the context of the ‘purposes of sentencing’ under s 3A of the Act, making full allowance of his disadvantaged background, issues of general and personal deterrence, denunciation and making the prisoner accountable are important matters for the Court to take into account in sentencing.

40. On the other hand the prisoner is still relatively young and there are some aspects of his presentation to the doctor pointed to by his learned counsel which give some indication that the prisoner is taking responsibility for his conduct and may be better amenable to the assistance of the Probation and Parole Service in a range of ways, particularly in addressing his drug and alcohol dependency and his anger and violent offending, both in custody before his release to parole and when he is released to parole.

41. Dr Furst’s opinion was that with his significant drinking and substance abuse issues and his background of family dysfunction and anti-social attitudes the prisoner was generally immature and impulsive. The prognosis must be guarded and I think that is a very fair assessment. His best prospects of remaining abstinent in the future in reducing the risk of re-offending would be through engagement in suitable drug and alcohol counselling and/or residential drug and alcohol rehabilitation. Also, of course, addressing domestic violence and the need for the prisoner to take responsibility for himself and anger management, as well as parenting courses, would probably also be of benefit.

42. I have already pointed out to the prisoner, and I mean no offence or insult to him, that the burden of raising his son clearly over recent years with him being in prison so often has fallen to his partner and it sets no example for his child for him to be in prison.

43. The other aspect of this matter, in the context of issues relating to domestic violence, is for the prisoner to hear the words and heed the words of people such as Pat Dodson and his brother Michael Dodson, leaders of the Aboriginal community across Australia, concerning the need for Aboriginal men to take responsibility for themselves to stop blaming other people or other things for the inability to control aggression towards their partners. It is not the Aboriginal way to be violent to one’s partner and it is not part of Aboriginal culture to do that. Nobody has reasonably suggested that is so, either in this case or any other case. Ultimately, the matter comes back to a question of personal responsibility and I would hope the prisoner will take heed of the need for personal responsibility on his release.

44. I am prepared to accept by reference to s 21A(3) mitigating factors that the injury suffered by the victim in the context of the type of injury contemplated by the legislation were not substantial. Clearly there was no planning in this offending. The plea of guilty is itself a mitigating factor under s 21A(3) and although the prisoner did not give evidence I am mindful of the account given by the psychiatrist and what the prisoner has said to the Probation and Parole officer.

45. I am prepared to accept the prisoner has taken responsibility for his actions and reflects remorse or contrition which could be regarded as a mitigating factor. His plea of guilty is some evidence of that as his counsel pointed out.

46. I have earlier referred to the various submissions were made by his counsel, many of them I have specifically addressed in the course of dealing with the facts in relation to this matter either expressly or implicitly. Material from the bar table suggesting the prisoner would wish to go back to the South Coast, perhaps his partner will follow him there. But the issue of her forgiveness of him or not with respect is neither here nor there. The prisoner should understand that his actions towards the victim required her to go and get medical treatment, to be picked up by an ambulance, to be taken to a hospital, to cause police to go looking for him, for him to be arrested, for the Parole Authority to meet and determine his fate. All these matters impose a burden upon services available to the community and impose a burden upon service providers which the prisoner I am sure does not fully appreciate. If he is able to behave himself which is a simple request of the community of him, and that includes the Aboriginal community, funds that are spent on such matters might be diverted to other people or other services that would better assist the prisoner and his community.

47. In respect of his prospects of rehabilitation, as I said to his counsel, I would need a crystal ball to be able to make a prediction of that on balance in his favour. His past history is not encouraging. But, on the other hand, he is getting to the point now where given the period of time that he has been in custody he must be seriously reflecting upon what he needs to do when he is released to avoid coming back to custody. He has got to understand the reality of the matter that if he wants to get out and continue offending courts will just get sick and tired of providing any form of leniency or mercy or consideration to him and he will just face longer and longer terms of imprisonment with less and less likelihood of finding some special circumstances being made in his favour.

48. I have had regard of course to the brief submissions of the Crown. I have addressed those I believe expressly in my remarks. In considering the appropriate disposal of the matter I have naturally, as I have pointed out, taken into account the report of the psychiatrist and the report of the Probation and Parole Service officer in the context of the principles that I have outlined. I trust that I have covered the feel to deliver this judgment ex tempore shortly after the conclusion of the submissions.

49. Thus in relation to the matter to which the prisoner has pleaded guilty, you can stand up please Mr Mason.

50. In respect of the principal offence, taking into account the matter on the Form 1, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of 16 months which commences on the date that you pleaded guilty 18 September 2013 and will expire on my calculation, I will get the Crown to correct me if I am wrong, or Mr Oates to correct me if I am wrong, on 17 January 2015.

51. I fix in relation to that sentence a balance of sentence of 20 months. That sentence will expire on 17 September 2016. I direct that the offender be released to parole on 17 January 2015. I do not propose to fix conditions of parole, the Parole Authority will ask for and will be provided with my remarks on sentencing as will the Department of Corrective Services. I would encourage the prisoner to have the opportunity of undertaking such courses as are available in custody but I accept the submission of his counsel that the opportunity for him to engage in appropriate courses may be greater outside of the custodial setting.

52. Are there any technical matters from you Mr Crown?

53. LEE: No your Honour.

54. HIS HONOUR: Any matters from you Mr Oates?

55. OATES: Will your Honour consider ordering a transcript of the remarks on sentence?

56. HIS HONOUR: Do you want me to ask?

57. OATES: It has been my experience that they are not always transcribed.

58. HIS HONOUR I will request that I be sent the draft remarks and I will revise them but they will come to me in the normal course anyway. Corrective Services insist I have never known of a sentence where I have not revised the remarks to tell you the truth, particularly if there has been a term of imprisonment imposed because Corrective Services ask for it.

59. OATES: Unless I be misunderstood there are certain aspects of what your Honour has said I wish to bring home to my client with correct reference to the remarks that have fallen from the bench today.

60. HIS HONOUR: That’s very kind of you certainly if they revise them, if they come to me I will revise them as soon as I can. Now Mr Mason do you understand the sentence I have imposed.

61. OFFENDER: Yes your Honour.

62. HIS HONOUR: Do you understand the commencement date and the non parole period.

63. OFFENDER: Yes.

64. HIS HONOUR: Now Mr Mason I want you to clearly understand, I am not talking down to you, do you understand, I’m just trying to encourage if that’s the correct word. You may not care for a single thing that I’ve said but at the end of the day your partner is left with the care of your son and your relationship with her cannot continue if you continue to assault her and frankly and this is the bottom line, if you want to use methylamphetamine and cannabis well regrettably you will find yourself back to these courts I am sure very quickly.

65. The only way that you’re going to avoid coming back to these courts is to address one of the significant issues that you’ve got and that is your dependency upon drugs. Lots of people in your circumstances and I know that there are many temptations and many pressures but the bottom line you went straight to drugs as soon as you got out last time, I know that. Your counsel tells me that and he gave some detail that I didn’t know from the other material about that and it boils down to you just taking responsibility for yourself.

66. If you don’t want to take responsibility for yourself well just expect to spend a lot more time in prison. Anyway thank you very much I wish you well, thank you to the Corrective Services officers you are excused.

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Decision last updated: 24 March 2016