R v Matthew Albert Sheather

[2017] NSWDC 122

District Court

New South Wales

Medium Neutral Citation:	R v Matthew Albert Sheather [2017] NSWDC 122
Hearing dates:	18 May 2017
Decision date:	25 May 2017
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Suspended Sentence. For Orders see [51]
Catchwords:	Recklessly inflict grievous bodily harm in company
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Green v R (2011) 244 CLR 462
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Matthew Albert Sheather (Offender)
Representation:	Counsel: P Kerr (Crown) J Gallagher (Offender)
File Number(s):	15/279837
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect to an offence pursuant to s 35(1) of the Crimes Act 1900, of recklessly inflict grievous bodily harm (in company).

2. The maximum penalty for the offence is 14 years imprisonment, and there is a Standard Non-Parole Period of 5 years imprisonment.

3. The offence occurred on 19 September 2015. The offender was arrested on 24 September 2015 and spent 175 days in custody until 16 March 2016. The offence was committed whilst the offender was on conditional liberty, namely, he was on Appeal Bail in relation to a sentence for shop stealing imposed on 3 November 2015, namely, 3 month fixed term to date from 8 September 2015.

4. The co-offender, Horne Jnr, the son of the co‑offender Horne Snr, pleaded guilty to an offence of recklessly inflict grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900. He was sentenced at the Young Local Court on 5 July 2016 to a term of imprisonment of 9 months, suspended pursuant to s 12 of the Crimes (Sentencing Proceure) Act 1999 (“CSPA”).

The sentence hearing

5. The sentence hearing took place on 18 May 2017 at Wagga Wagga. The Crown Sentence Summary (Ex A) included a Statement of Agreed Facts, which may be summarised as follows.

6. On 19 September 2015, the victim, Michael Boxsell, was at his home in Wombat Street, Young. Those premises were a single-storey dwelling with a detached carport and shed. The main entry to the premises was at the side of the house from the driveway. The entry was accessible by five steps, leading to a landing, on the outside of which, was a handrail.

7. At 10pm on 19 September 2015, the victim heard a vehicle pull up in front of his house and a number of car doors open and close. He looked out the window and saw the vehicle of Horne Snr parked on the street, and the co offenders walking down the driveway towards the front door. Horne Jnr banged loudly on the front door and called out “Boxsell, why is there a group of guys making threats to me and my sister?” The victim responded “There is no-one here by that name, I have a fucking bat”. He then opened the front door.

8. Horne Jnr was standing at the front door and the offender was standing to his right. The co-offender Horne Snr was standing at the bottom of the stairs. The victim saw the offender present a black-coloured bladed knife, approximately 20-25cms in length. At that time, the victim was holding a samurai sword, approximately 1 metre long. The victim swung the sword, hitting into the top of the door arch. The victim moved towards Horne Jnr with the sword in his hand, at which point, Horne Jnr punched the victim to the face and the victim stumbled backwards. Horne Jnr then wrestled the sword from the victim’s hand and threw it behind him. Horne Jnr began to punch the victim in the face with a closed fist and the offender also moved towards him and began to punch him with his closed right fist.

9. The co-offender Horne Snr was yelling at the victim about “running through houses”. The victim yelled back that he did not know what Horne Snr was talking about.

10. The facts relied upon by the Crown allege that the victim was pushed into the metal handrail on the porch outside the entry, whereupon the offender and one co-offender pushed the victim down the stairs and he landed on his back.

11. Horne Jnr then got on top of the victim and began punching him with a closed fist to the face. At this time, the offender was kicking the victim to his body. The victim felt a heavy impact on his right leg on the side of his knee, and felt the bone in his right leg snap, and started to scream. Horne Snr then said, “Let’s go, get off him, he’s had enough”.

12. Co-offender Horne Snr then told the victim not to make any threats of violence against his daughter, and the victim denied having made any threats against Horne Snr’s daughter. The victim then saw the offender standing over him, still holding a knife in his hand. He remained standing over the victim for a short time and the co-offender Horne Snr yelled out, “Alby, get in the car”, a number of times, following which, the offender walked away toward the car.

13. The victim was rendered assistance by neighbours and a short time later the police arrived and rendered further assistance. The victim received a broken right tibia, which required surgical correction involving the insertion of steel plates and screws. He also sustained facial injuries, and injuries to his ribs, stomach and kidneys.

14. The offenders were arrested on 24 September 2015, and the offender made no comment in relation to the allegations put to him during an electronic interview.

15. Exhibit A contained the criminal antecedents of the offender, who was born on 7 September 1986. It was a substantial criminal history, commencing in 2005, and involving offences of dishonesty and violence, domestic violence, firearms and motor vehicle offences, larceny, using false documents to obtain financial advantage, and resisting police.

16. The offender had been sentenced by way of fines, s 9 Bonds to be of good behaviour, s 12 suspended sentence, and ultimately terms of imprisonment. It was, on any view, a lamentable record which disentitled him to any leniency in sentencing.

17. Exhibit A also contained a pre-sentence report dated 4 May 2017 under the hand of Ms J Patten. It noted that the offender had first come under notice of Community Corrections in 2005, and had been the subject of numerous pre-sentence reports, and an Intensive Correction Order Assessment Report, and breach of bond reports, together with breach of State Parole reports. Prior supervision had focussed on anger management, substance abuse difficulties, and obtaining employment or attending further education. Overall, his response to supervision had been unsatisfactory.

18. The report outlined his family and social circumstances. He was raised by his mother, with whom he had a close relationship. He also had the support of his maternal grandparents. The offender was a single man who resided by himself in the township of Young. He left school at 15 and had been employed as a labourer and a shearer.

19. Under the heading “Substance Abuse”, the offender reported a problem with alcohol abuse from a young age. He now only drinks occasionally. He also reported abuse of illicit substances and had attended regularly at alcohol and other drug counselling.

20. The offender had been diagnosed with mental health instability, and continued to have counselling sessions.

21. Under the heading “Attitude to Offending”, the offender disagreed with the police facts and minimised his involvement in relation to the incident. He stated that he accepted a lift from the co-offender Horne Snr, who unexpectedly drove to the victim’s home. He denied any physical involvement in the offending behaviour.

22. The offender was assessed as low/medium risk of re-offending. His identified criminogenic needs are:

• Leisure/recreation

• Alcohol/drug problems

• Emotional/personal

23. It was considered that he would benefit from a period of supervision by Community Corrections, and that case management strategies would include:

• Monitoring attendance at drug and alcohol counselling

• Monitoring attendance at mental health counselling appointments

The offender’s evidence

24. The offender tendered a report from forensic psychologist, Dr Roger Blake, dated 27 April 2017 (Ex 1). That report set out in more detail the offender’s personal history. He had not had a stable home life, and also suffered learning difficulties. After leaving school prematurely in Year 9, he became homeless. The author reported that to his credit, the offender had held down regular employment since October 2016 with a shearing contractor, Mr Brian Ingram. He had been a positive influence on the offender. It was recorded that the offender was easily influenced by undesirable associates, and he was described by the author as a “vulnerable individual”. The offender had presented with definite cognitive limitations and a lack of social awareness. In the author’s opinion, he was naïve, suggestible and easily led into criminal behaviour, which was exacerbated by substance abuse.

25. In the opinion of the author, following assessment, the offender, at the time of the subject offence, was suffering from a mental health condition. He had a life-long permanent mental health condition of borderline intellectual disability, developmental delay and Substance Abuse Disorder, which impacted upon his capacity to engage in advanced consequential thinking, moral reasoning and impulse control. He was now treatment compliant in the area of drug and alcohol abuse, which had underpinned his offending behaviour and poor choices in life. The offender required a treatment plan to continue counselling intervention in the community so as to provide him with the resolve to avoid high-risk situations and associates in life. He needed to maintain employment which was central to lowering his risk of re-offending.

26. Mr Brian Ingram gave evidence on behalf of the offender. I interpolate here that he was a most impressive witness. He was a retired school teacher who had become a Counsellor on Young City Council in 2012, and had subsequently been appointed Mayor of Young. He had employed the offender from 2010 until 5 April 2012, in his work as a shearing contractor. The offender had been employed as a rouseabout, subject to strict conditions which required him to be prompt, to complete his work, to work in a team environment, and to be drug and alcohol free. He complied with all of those conditions.

27. Mr Ingram gave evidence that the offender’s employment terminated in April 2012 out of loyalty to a shearer who left Mr Ingram’s employment due to a grievance. His evidence was to the effect that the offender left out of misplaced loyalty to that shearer.

28. In October 2016, after being charged with the subject offence, Mr Ingram received a phone call from the offender asking whether he could be given a second chance. He was made aware of the downward spiral of the offender’s life, however, he offered him employment on the same strict conditions, but in addition, that he was to abide by any conditions imposed by the court. He started working a three day week, and it took him a while to get back into the work, however, he had continued to comply with the conditions of his employment.

29. Mr Ingram agreed with the conclusions of the psychologist that the offender was a young man who was easily led. When asked why he had employed him, Mr Ingram gave evidence that he himself felt privileged and that the offender had not had the same support that he had during his life. He had decided that he would rather that the offender follow his direction than others in the community. His evidence was that he would continue to employ the offender.

30. Mr Ingram gave evidence that no-one could condone the behaviour of the offender in this criminal offence. However, he had not put a foot wrong since his employment had re-commenced in October 2016, and he was responding well to the rules imposed on him. He had also spoken to the offender’s grandmother, who had been a constant support to the offender.

31. In cross-examination, Mr Ingram conceded that he was aware of the facts of the offence, and the use of a knife by the offender. It was Mr Ingram’s opinion that provided he had a guiding hand in life, the offender would be okay, namely, that his risk of re-offending would be limited.

The offender’s submissions

32. The offender submitted that the psychological report, Ex 1, established that the offender was of borderline intellectual disability, had suffered a developmental delay and also a Substance Abuse Disorder. There was a causal connection between his intellectual incapacity and his offending, which had been life-long. He was therefore not a suitable vehicle for general deterrence.

33. It was submitted that there was no evidence as to how the offender became involved in this incident. It was further submitted that Mr Ingram was a very impressive witness, who had indicated the gravity of the offending, that the offender was a follower and that he was responding well to the conditions of his employment.

34. The custodial history contained in Ex A demonstrated that the offender had been behaving himself whilst in custody between 24 September 2015 and 16 March 2016. This spoke well for his prospects of rehabilitation. Since then, he had been on strict bail conditions, reporting three days per week, subject to a curfew between 8pm and 6am, which was varied to 10pm to 6am, which also bode well for his prospects of rehabilitation and lowering his risk of re‑offending.

35. It was submitted that his intellectual incapacity put him into a category in that he was gullible and suggestible. In addressing the criminogenic needs set out in the pre-sentence report, it was submitted that the offender now has a structured work environment and that his grandmother lives close by. He has no involvement now with any anti-social peers. The offender had also been proactive in seeking out counselling. At 31 years, it was submitted that he had turned the corner. It was of concern here that the offence had been committed whilst he was on conditional liberty, however, his criminal history demonstrated that he found it difficult to adhere to the court conditions imposed on him, which had led to a number of call-ups for breach of various bonds and other court orders. However, it was submitted that it was now one year and two months since he had been on bail, and he responded well to his structured work environment. This suggested that he is changing and maturing, due to the positive influence of Mr Ingram on his life.

36. In respect of penalty, it was conceded that the s 5 threshold had been crossed, however, having regard to principles of parity in respect of the sentence imposed in the Local Court on his co-offender Horne Jnr, the offender should be given a suspended sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. Although his plea of guilty was late, he was entitled to a 10 to 15% discount on sentence. The court would also take into account that he had spent a substantial period of time in custody on remand for the subject offence.

The Crown submissions

37. The Crown conceded that during the periods that the offender had been mentored by Mr Ingram, he had committed no offences. Once he had given up that employment in 2012, he had commenced offending again. Therefore, structure was required for him to exhibit compliance with the law. Once that structure was missing, he reverted to criminal offending.

38. It was submitted that the offender’s criminal history throughout 2012 to 2014 included offences of violence and dishonesty. He was also on conditional liberty at the time of the offence, which was an aggravating factor.

39. The Crown submitted that the offender’s role was far more serious than his co-offender Horne Snr. He was armed with a knife and the facts established that he was, at the time the victim was lying on the ground, standing over him, holding a knife.

40. The Crown submitted that he had minimised his involvement to the author of the pre-sentence report. The Crown submitted that the court would not accept his contention that he was “unexpectedly taken to the victim’s house”.

41. It was submitted that there were differences to differentiate him from the co‑offender Horne Snr. These related to his mental health, his age, and also his lengthy criminal history, including numerous offences of violence, which inevitably led to terms of imprisonment being imposed. It was submitted that being gullible was no excuse for the offender. He was fortunate to have Mr Ingram back in his life, and if that employment continued, he would have positive prospects of rehabilitation.

Determination

42. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

43. I find the objective seriousness of the offending here was below the mid-range for an offence pursuant to s 35(1) of the Crimes Act 1900. The offender’s role was equal to the offending of Horne Jnr, but more serious than the offending of Horne Snr, however, as a joint criminal exercise, they were all responsible for their actions. By going to Mr Boxsell’s premises, the three co-offenders took the law into their own hands. The offender and co-offender Horne Jnr carried out a violent attack on an older man in his own home. I therefore find that whilst it is below the mid-range of objective seriousness for such an offence, it is only just below that mid-range and constituted serious offending.

44. I have taken into account the maximum penalty for an offence pursuant to s 35(1) of the Crimes Act 1900, of 14 years imprisonment, and the Standard Non-Parole Period of 5 years imprisonment as guideposts in the sentencing process. I have also taken into account that the offence occurred whilst the offender was on conditional liberty.

45. The offender’s plea of guilty came late, well after the matter was listed for trial, and the day before that trial was due to commence. In those circumstances, he is entitled to a minimal utilitarian discount on sentence of 5%. On the question of parity with the sentence imposed on Horne Jnr in the Local Court, notwithstanding that this was subject to a different charge, namely, pursuant to s 35(2) of the Crimes Act 1900, the principle of parity still applies. As held by the High Court in Green v R (2011) 244 CLR 462, parity is a substantive and not a formal principle, and derives from the principle of equality before the law. It therefore applies to offenders charged with different offences who are involved in the same criminal conduct. The greater the difference in seriousness of the charged offences, the less scope there is for a meaningful application of the principle. Here, the offences are very similar, except that the offence pursuant to s 35(1) involves the aggravating factor of being “in company”. A court is, however, to take into account differentiating factors which apply in the circumstances of each offender. Here, the offender had a substantial criminal history, and therefore that history, which included convictions of violence and dishonesty, must be taken into account. As outlined above, it is a lamentable record which would deprive him of any leniency.

46. I note the offender is now aged 31. I accept the findings of the psychologist in Ex 1 that the offender is of borderline intellectual capacity, and has suffered developmental delay and also a Substance Use Disorder. This has reduced somewhat his moral culpability for his offending, and also reduces his suitability as a vehicle for general deterrence. Having said that, general deterrence is important in sentencing here. A strong message must be sent to the community that people are not to take the law into their own hands and, if they do so, severe penalties will be imposed by the courts.

43. I take into account that the offender, who has been subject to strict bail conditions, has not offended in the period of 1 year and 2 months since those conditions were imposed. I also take into account his fortune in obtaining employment with Mr Ingram and the positive impact that that has had on his life.

44. An aggravating factor that has to be taken into account on sentencing here, pursuant to s 21A(2)(c) of the CSPA, is that the offender used a knife in that he had a knife in his right hand during the attack on the victim. This is an important factor, differentiating his sentence from that of his co-offenders.

45. Finally, I take into account that he has spent 175 days in custody on remand following his arrest on the subject charge.

46. Having regard to the objective seriousness of the offending, and the principles of sentencing that I have referred to above, I intend to impose a sentence of imprisonment of 18 months, but to suspend that sentence on conditions.

Orders

51. I make the following orders:

1. You are convicted of the offence of recklessly inflict grievous bodily harm (in company), pursuant to s 35(1) of the Crimes Act 1900.

2. I sentence you to a term of imprisonment of 18 months.

3. I suspend that sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, on the condition that you enter into a Bond to be of good behaviour for a period of 18 months from today.

Further conditions will be that you accept the supervision of Community Corrections, and in particular:

1. Attend any drug and alcohol counselling recommended, and

2. Attend any mental health counselling recommended.

It is a further condition of your bond that you remain employed by Mr Brian Ingram, unless he terminates your employment for any reason.

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Decision last updated: 26 May 2017