R v Matthews

[2019] NSWDC 342

District Court

New South Wales

Medium Neutral Citation:	R v Matthews [2019] NSWDC 342
Hearing dates:	01 July 2019
Date of orders:	02 July 2019
Decision date:	02 July 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months
Catchwords:	CRIME — Violent offences — Cause grievous bodily harm with intent SENTENCING — Non-parole period — Principles to be applied SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Form 1 offences
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2002] NSWCCA 518 Callaghan v R [2006] NSWCCA 58 De La Rosa [2010] NSWCCA 194 Engert [1995] 84 A Crim R 67 Hemsley [2004] NSWCCA 228 King v The Queen [2010] NSWCCA Muldrock v Queen [2011] HCA 39 Nowak v R [2008] NSWCCA Qutami [2001] NSWCCA 353 R v Cramp [2004] NSWCCA 264 R v De Simoni (1981) 147 CLR R v Falls [2004] NSWCCA 335 R v Youkhana [2004] NSWCCA 412 Shine v R [2016] NSWCCA 149 Tepania v Queen [2018] NSWCCA 247 Veen No 2 [1988] HCA 14 Veen v Queen (No.2) (1987-1988) 164 CLR 465 [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Sean Matthews (Offender)
Representation:	Emma Blizard (Crown) Nathan Steel (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2018/00214481

EX TEMPORE JUDGEMENT (REVISED)

INTRODUCTION

1. These are sentence proceedings for Sean Matthews. The matter commenced before me yesterday, 1 July 2019. After receiving the evidence and considering the submissions I decided to defer the imposition of sentence and the reasons for it until today to allow me time to conduct some research into some of the points that were raised and to give appropriate consideration to what is a matter of some significance.

THE OFFENCES

2. The offender pleaded guilty in the Local Court to an offence contrary to s 33(1) (b) charged in conjunction with s 344A, both of the Crimes Act 1900. The offence is in the following terms: that the offender on 12 July 2018 at Eastwood in the State of New South Wales did attempt to cause grievous bodily harm to SC with intent to cause grievous bodily harm. The maximum penalty for that offence is imprisonment for 25 years. This being an attempt and thus an inchoate offence there is no applicable standard non‑parole period in accordance with Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999. Although there is one specified for a complete offence, it is irrelevant in the determination of this matter.

UTILITY OF THE PLEA OF GUILTY

3. Having pleaded guilty in the Local Court the offender adhered to that plea of guilty in this Court and therefore attracts a discount for the utility of the plea of guilty at 25% to be applied to the sentence that would have otherwise been imposed. This discount will be applied to the sentence determined as appropriate upon the synthesis of objective and subjective material that has been presented to me including the contrition and remorse which I accept the offender has demonstrated notwithstanding that he has not given evidence before me.

FORM ONE OFFENCE

4. In addition to the offence upon which sentence is to be imposed, there is an offence to be taken into account in accordance with s 32 Crimes (Sentencing Procedure) Act. The Form 1 containing the particulars of that offence has been signed on behalf of the Crown and by the offender. This offence occurred on 12 July 2019 at Sydney. The brief description provided in the document is in the following terms:

5. Sean Matthews was conveyed in a caged compartment of a police vehicle from Ryde Police Station to Burwood Local Court to be placed in a cell. At about 12.25pm, a senior New South Wales Corrective Services officer, BD, opened the rear door of the caged compartment of the police vehicle; instructed Sean Matthews to alight from the vehicle. Sean Matthews left the caged compartment and stood outside the compartment’s door. He stood about half a metre away from BD. Sean Matthews clenched his fists together and raised his left elbow. He then used his body to propel his left elbow at BD’s head. He narrowly missed. Sean Matthews was then restrained by police and Corrective Services officers and taken to a cell.

6. The offence there described is one of assault a law enforcement officer contrary to s 60A (1) Crimes Act. The maximum penalty specified for that offence is imprisonment for five years. I shall take the offence into account in the determination of sentence for the principal offence.

7. He must suffer a sentence that will provide appropriate punishment for the offence before me as the principal offence and, taking into account the additional offence, I must determine the extent to which the sentence that would have otherwise been imposed ought to be increased.

8. Having availed himself of the arrangement the offender has the benefit of not facing separate punishment for the additional offence. The additional offence shall impact upon the sentence for the principal offence in which it is to be taken into account requiring an appropriate increase in the sentence that would have otherwise been imposed thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender’s misconduct and the community’s entitled to retribution for both of the offences that he committed. I am familiar with and often refer to the judgement of Spigelman CJ in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2002] NSWCCA 518 where guidance is provided for sentencing courts when determining matters in which an additional offence is to be taken into account.

PRE-SENTENCE CUSTODY

9. The offence was committed whilst the offender was subject to parole. The parole period will expire on 2 December 2020. It is in respect of offences of aggravated break and enter and commit serious indictable offence. It appears there were six of them. There is a document in terms revoking or purporting to revoke parole provided by the State Parole Authority which includes the following:

“The parole authority is still in the process of reviewing the revocation of the offender’s parole...the revocation of parole has not been confirmed.”

10. He was released to parole some 40 days or thereabouts before the commission of the offences with which I am concerned. He was arrested on 12 July 2018, the date of the offence in each case. There was some debate about when the sentence ought to commence. The Crown urged that the sentence should commence at some point after 12 July 2018. The submission by Mr Steel who appears for the offender was that there is a risk of double-counting when I take into account the fact that the offender was subject to conditional liberty by way of parole were I to then commence the sentence at some later date as contended by the Crown.

11. There is a discretion available to the Court as discussed by Simpson J in Callaghan v R [2006] NSWCCA 58 in the exercise of which, as her Honour noted, it is appropriate for the Court to bring to account that even upon revocation of parole it could not be said that but for the instant offence parole might not have been granted at some point along the rest of the time available. I have come to the decision that I should commence the sentence on 12 July 2018, noting that parole has not yet been revoked, or alternatively, that the confirmation of the revocation of parole has not been made; that will remain a matter for the parole authorities.

THE FACTS

12. The statement of agreed facts described the offender as 28 years of age and the victim as a serving police officer who was on duty in uniform at the time of the offence. The offender is in fact now 29 having this year celebrated that birthday. He was released to parole on 2 June 2018 and at the time of the offence he was subject to a community treatment order.

13. The offence occurred directly outside Eastwood Police Station and the event was captured by closed-circuit television, which was played to the Court after it was tendered as part of the Crown exhibit A. The images which I have watched so far three times, twice in court and once in chambers, depict the victim on the steps of the police station. After having interacted with other police officers, he turned to walk toward what appears to be the front entrance of the police station. The offender approached from the background and to the left of the field of vision with his right arm down and with his hand hidden from view. As he approached the victim, Senior Constable SC, he turned toward the offender who at that point brought his arm forward and raised it. In his right hand he held a knife, 30 centimetres in length, with a blade of about 20 centimetres, depicted in a photograph included in the agreed statement of facts. He struck three times at the police officer. He was able to deflect of block the first two blows. The third happened quite quickly and I did not see precisely what the police officer did, although he had his arms up in a defensive position.

14. I shall provide in addition the description of the event admitted by the offender by way of the agreed statement. This records that at 2:56:12 hours the offender is seen on the CCTV images in the distance at the intersection of Ethel Street behind a van parked on the corner. He is there for about 30 seconds. That intersection is about half a block from the Eastwood Police Station. He walked from the intersection, directly across the road to the police station. Around the same time the victim, Leading Senior Constable SC, parked a police car outside the police station, having returned from a meal break. He stood outside the police station for a short period of time talking to other officers and was walking up the stairs of the station. All officers present were in uniform. The offender is captured on the CCTV footage crossing the road and walking to the police station with the large knife in his right hand. The offender was wearing large earphones.

15. The offender has had no prior interaction with Leading Senior Constable SC or any of the other police officers present outside the police station at this time. The offender did not say anything before the offence. The offender walked up the stairs toward Leading Senior Constable SC who was backing away and swung the knife in the direction of Leading Senior Constable SC’s head. Leading Senior Constable SC executed a check drill and raised his left forearm toward the offender’s hand, blocking the knife from making contact. The offender swung the knife a second time in the direction of Leading Senior Constable SC’s head causing him to duck from the blow which was blocked by the Senior Constable’s arm. The offender swung the knife a third time, “flailing” the knife, but stopped short of a strike before turning and fleeing the scene. Throughout the incident the senior constable was fearful for his life.

16. After the third attempted strike the offender ran away from the senior constable and was immediately pursued by him and five other police officers. The offender was detained a short distance away. A Taser was deployed, causing the offender to drop the knife. He yelled, “You fucking dog cunts”. The police removed the headphones that he was wearing. He responded with his name Sean Matthews when asked. When asked why he had committed the offence he said that the police were harassing him.

17. The knife seized was a large kitchen knife, about 30 centimetres in length with a blade of approximately 20 centimetres. The photograph of the weapon is, as I said, included in the material and it has depicted a scale against which to confirm the particulars of its length.

18. He declined to be interviewed.

19. The offender’s mother gave a statement to police on the morning of 12 July 2018. She stated that since his most recent release he had told her every day that the police put a chip in his head while he was in gaol and that he wanted an MRI scan to find it. He told her that he believed police could turn his energy up and down through the chip. She said that about 8.30pm the night before the offence he was pacing in the house with a knife and was saying that the police were coming to get him and that the police had been communicating with him through the chip. She identified the knife with which he was pacing as the one used in the commission of the offence.

20. It was suggested to me that the objective gravity of this offence should be seen to be toward the lower end of the scale of seriousness. I do not agree with that submission.

21. His Honour Johnson J dealt with the assessment of objective seriousness of offences in Tepania v Queen [2018] NSWCCA 247.

22. His Honour was there concerned with a standard non-parole period offence and after providing an analysis of the provisions contained in Part 4 Div 1A of the Crimes (Sentencing Procedure) Act and what was promulgated after the decision of the High Court of Australia in Muldrock v Queen [2011] HCA 39 wrote at para 112:

“In sentencing for an offence (whether or not a standard non-parole period offence), 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 all material he contributed to the commission of the offence, including (if it be the case), a mental disorder or mental impairment. It was recognised at Common Law that motive or emotional stress which accounts for criminal conduct is always material to the consideration for an appropriate sentence”.

23. His Honour then referred to various authority and continued at para 113:

“The concept of “moral culpability” was used by the sentencing judge in this case in its submissions to this Court. The term “moral culpability” has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v Queen (No.2) (1987-1988) 164 CLR 465 [1988] HCA 14: It was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability”.

24. There is no question and the Crown is not heard to be arguing to the contrary that the offender is afflicted with mental illness, the extent to which I shall come to describe when I deal with his circumstances.

25. It is also relevant to note that in the custodial setting, in the controlled environment, that mental disorder is managed. It is also important to note that at the time of the commission of this offence, he was not complying with the medication prescribed for his management and he was resorting to prohibited drugs which exacerbated the problem with which he is burdened.

26. The extent of his management in the controlled environment is reflected in the letter that he has written to the Court, expressing his remorse for having committed this offence.

27. The Crown has advanced a number of aggravating circumstances upon which it relies in support of the proposition that this offence falls above the level of gravity for which the offender contends. Aggravating factors to be brought to account from s 21A (2) Crimes (Sentencing Procedure) Act 1999 include in para (a) that the victim in this case was a police officer on duty in uniform; and para (c), the offence involved the use of a weapon, namely the 30 centimetre long knife, to which I referred.

28. The Crown points to some planning relying upon the proposition that the offender left home armed with the knife seen by his mother in the early hours of the morning. He hid himself behind a car and approached the victim from behind, and as I described, with his arm down to the side and the knife hidden from view.

29. The offender has a record of prior convictions; this does not aggravate the offending objectively, neither does it increase the sentence to which the offender might otherwise be exposed determined to be proportionate to the misconduct, but it does inform aspects of personal deterrence and the extent to which the offender might have otherwise been entitled to leniency.

30. The Crown also relies upon para (g), that the victim suffered substantial, emotional harm. Mr Steel points out, correctly in my view that this cannot be taken into account as an aggravating factor, though I accept that the victim suffered what might well be described as substantial, emotional harm from this attack. I shall come to the victim impact statement shortly.

31. The CCTV images graphically depict the ferocity with which the offender struck, three times at the head and neck of the victim, after approaching from behind with a knife held in his right hand using his body to hide it from view until he was ready to strike. The officer’s reflexes fortunately allowed him to deflect or block each blow which otherwise could have resulted in life-threatening, penetrating wounds to his throat and face. It is hardly surprising that he suffered the sequelae read from the victim impact statement. This, however, cannot be taken into account as an aggravating factor and there are a number of authorities dealing with this proposition.

32. In King v The Queen [2010] NSWCCA at 33, R A Hulme J wrote at para 34:

“There have been a number of statements in judgments of this Court to the effect that it is erroneous to take into account as an aggravating factor a matter that is an inherent characteristic of the offence or the particular class of offence. See, for example,

R v Youkhana [2004] NSWCCA 412 per Hidden J at 25-26” (and inherent characteristics of the offence of armed robbery that the harm to the victim will be substantial)...”

33. Although the Court of Criminal Appeal was there concerned with an aggravated sexual assault offence, the statement of principle that fell from his Honour is clearly applicable.

34. In Youkhana [2004] NSWCCA 412, at para 25 Hidden J wrote:

“One can entirely understand Mr Wong’s reaction as he described it. No doubt, Mr Pattisti’s statement that he “started to feel scared” at one stage of the robbery is an understatement. Armed robbery is necessarily a frightening experience for its victims. This is not a matter about which courts need evidence. In large part, it is why the offence is viewed so seriously and carries a very high maximum penalty”.

35. Paragraph 26:

“However, before a judge could find ‘substantial emotional harm’ within the meaning of s 21A (2) at para (g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There is no such evidence here.”

36. In this case, there is evidence provided by way of the victim impact statement and also from a psychiatrist but as I have said, I am not according to my understanding of the law, permitted to take this into account as an aggravating factor.

37. Similar views were expressed by Buddin J in Nowak v R [2008] NSWCCA at para 22 where his Honour wrote:

“Earlier the sentencing judge had observed that ‘the offence itself is an objective serious one, demonstrating a significant degree of violence, resulting in substantial injuries to the victim’. No criticism was, or could be raised in respect of those observations. A sentencing court is entitled to have regard to the extent of the injuries in assessing the objective seriousness of a particular offence so long of course as the principles in R v De Simoni (1981) 147 CLR at 383 are not infringed, see for example ... However, to treat as an additional aggravating factor that the injury was substantial in an offence of the present type does speak error of the kind referred to in R v Cramp [2004] NSWCCA 264...”

38. In R v Cramp [2004] NSWCCA 264 at para 65 Spigelman CJ wrote:

“I note that his Honour also referred in his judgment to s 21A (2) (g): that the injury caused by the offence was substantial. Although no objection was taken on this basis during the course of this appeal, it would appear to me that this aspect of his Honour’s reasoning suffers from the same defect as that identified above with respect to s 21A(2)(b). The offence under s 33 requires the infliction of grievous bodily harm. Where that is an element of the offence, the injury is ‘necessarily substantial’. Accordingly, I do not take into account, unlike his Honour, the degree of injury as an aggravating factor.”

39. In the course of the argument presented by Mr Steel on behalf of the offender I advanced the proposition that by definition grievous bodily harm extends from permanent scarring and as he pointed out in the course of argument it can extend to the most grievous of injury from that low level. To the extent that my response to his submissions might have given the impression that the degree of harm by way of emotional challenges now faced by the victim is a matter of aggravation in accordance with s 21A (2) (g) Crimes (Sentencing Procedure) Act, I make clear that I have not taken this into account as an aggravating factor but it does form part of the factual matrix upon which I have determined sentence in this case.

40. The other aspect of aggravation upon which the Crown relies is that the offence involved a grave risk of death, s 21A (2) (ib). I agree with that submission. As I noted but for the ability of the police officer to deflect these blows there was a very real risk that this knife would have penetrated either his throat or face and a knife of that magnitude penetrating the throat of another human being involves, in my judgement, the grave risk of a fatal wound from the length of the blade and the fact that it could sever one of the vital arteries in that part of the human body.

41. Bringing all of those matters to account I am satisfied that this offence does fall towards the mid-range of objective seriousness. It is always a matter of judgement where to place an offence on the scale of seriousness and minds will differ but I come to the view that in this case that is where it should be placed.

THE OFFENDER’S ANTECEDENTS

42. Turning now to the offender, of note is that he has spent almost all of his adult life in gaol. According to the custodial record provided by Corrective Services leaving aside whatever custody he was required to serve as a child he came into the adult system on 3 October 2008 when he was 18 years of age. There he remained until admitted to parole on 2 September 2009. He was at large until he was brought into custody again on 23 March 2010, which is a period of some three months approximately. He remained in custody until 18 November 2010. He was released on parole and remained at large until 5 December 2010, a period of a little more than two weeks. He remained in custody from 5 December 2010 until paroled on 6 August 2015. He was at large then until 4 December 2015, a period of about four months. He was paroled on 2 June 2018 until he was arrested for this misconduct on 12 July 2018, a period of about one month and one week.

43. I agree with the submission made on behalf of the offender that there is a grave risk of institutionalisation in this case, particularly if his conduct can only be regulated in the controlled environment of gaol where he will be abstinent from prohibited drugs, particularly methyl amphetamine, and compliant with the medication that he so much needs.

44. The Crown has drawn to my attention his antecedent record including the offences of violence upon which he has been presented at various times. On 3 October 2008 he was before court for assault occasioning actual bodily harm and demanding property with menaces; on 9 January 2010 for common assault; on 21 March 2010 for affray and common assault; on 4 December 2010 for demanding property with menaces with intent to steal and robbery armed with an offensive weapon; on 5 December 2010 resisting police, robbery armed with an offence weapon; on 26 November 2015 aggravated break and enter and commit serious offence, five counts; on 2 and 3 December 2015 aggravated break and enter and commit serious indictable offence and on 3 December 2015 possess prohibited drug, possess housebreaking implements and goods in custody.

45. I have had regard to s 21A (2) (d) Crimes (Sentencing Procedure) Act which provides as an aggravating factor that:

“The offender has a record of previous convictions (particularly that the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),”

46. The term “serious personal violence offence” is defined to mean a personal violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 that is punishable by imprisonment for life or for a term of five years or more. Section 4 of that Act in para (a) lists the various offences defined as “personal violence offences”. These are contrary to ss 59 to 61 and s 33 Crimes Act. However, as I said, his antecedent record as an aggravating factor has a limited role to play in accordance with what was said by the High Court of Australia, particularly in Veen No 2 [1988] HCA 14.

47. Turning now to the antecedent report that is before me, he was first in court as a child in March of 2007. At that stage he was 17 years old, he was charged with common assault. In May 2007 he was in the Children’s Court for goods in custody and in May 2007 he was in the Children’s Court for affray, street offences and assaulting and resisting an officer in the execution of duty. In May 2008 he was called up for the breach of the bond imposed in respect of the affray. He was again before a Children’s Court for intimidating a police officer. In May 2008 for damaging property and for using offensive language and for driving with a high range prescribed concentration of alcohol. In July 2008 he was in the Local Court for larceny and thereafter he has been before the courts as pointed out for assault occasioning actual bodily harm, demanding property with menaces with intent to steal, affray, common assault, resisting or hindering police officers, robbery armed with an offensive weapon, possession of prohibited drugs and other offences including those that were identified by the Crown in submissions.

48. The breach of parole report addresses his response to supervision. He first attended Community Corrections on 4 June 2018 with his mother. His presentation was disoriented, his speech was slurred, he was unsteady on his feet, he admitted recent drug use in custody, a random drug test was positive for benzodiazepines and amphetamines/methamphetamines. He was reminded of his parole conditions and given a further direction not to use prohibited drugs. On 13 June 2018 there was a home visit where no concerns were identified. He was compliant with his supervision thereafter and was attending Hornsby Mental Health Services in relation to his community treatment order to which he was subject. On 11 July 2018 they advised that he was compliant with his order, thereafter however he obviously fell by the wayside and committed these offences.

THE VICTIM IMPACT STATEMENT

49. I should turn to the victim impact statement read by Leading Senior Constable SC. Apart from defining the psychological harm that he suffered as a consequence of this event it does provide the Court with its own insight into the impact of such an offence. I accept that the attack as it unfolded, graphically depicted in the closed-circuit television, would cause fear and it is understandable that the police officer feared death as he asserted in his statement. It is understandable that he might turn his mind to his family and sons and how it was necessary to fight for his life so it did not end there on the stairs of that police station. When he gave chase after the offender fled he was breathing heavily, felt hot and exhausted, obviously the sequelae from what he had experienced, but at the time causing him to fear that he might have suffered a wound in the course of the attack. He spoke of going into shock; he relived the experience as a consequence of the media interest in this event.

50. The exposure to his wife and children of this event by way of the media was another matter that caused him stress. He suffered emotional sequelae in the immediate aftermath and the weeks that followed including breaking down, crying, being unable to sleep, suffering loss of appetite. He attended upon his general practitioner; he had no capacity to resume work. He had approved concurrent employment as a lawnmower in his own small business with which he could not continue. He was referred to a psychologist to whom he has attended and also a psychiatrist. He undertook exercise through a physiologist to help regain or improve fitness so that he might be in a better position should he be called upon to face such an event again. He has suffered loss economically as a result of the inability to return to full duty and to persist with his ancillary source of income. He is anxious when he is out and about, knives cause him distress, and he has lost confidence when dealing with people, essential requirements for a police officer engaged upon general duties I would have thought.

51. The extent of his post-traumatic stress is reflected in the reports provided by Dr Alexander Murray to which I have had access. All of the symptoms here described are consistent with post-traumatic stress of which I am well aware from the experiences I have had performing this role over the last 13 years and in my time at the bar both as a prosecutor and as defence counsel. He has striven to return to work and has gone back on restricted duties for limited periods but he suffers and continues to suffer the sequelae which require the intervention of the psychologist and the psychiatrist.

THE OFFENDER’S EVIDENCE

52. In the offender’s case I have a letter written by his mother. Mrs Matthews has the Court’s sympathy. I could imagine nothing worse than sitting in court with my son in the dock facing a sentence of imprisonment for the most of serious criminal offences, albeit by way of an attempt. I can imagine her anguish. She acknowledges in this letter that she has written to the Court that her son is to be sentenced. She is aware of the facts; she provided a statement to the police at the time. She continues to speak regularly with her son since he has been incarcerated, she knows that he is sorry for what he did and for what the police officer has suffered and so too his family. She has learned more about his mental condition through speaking with his psychiatrist at Silverwater who has explained what is involved with paranoid schizophrenia. She has been helped to connect with support groups to further develop her understanding of his condition. She has learned to accept now better than before his mental illness. She acknowledges that when released she could not appreciate the extent to which she was not able to adapt in society having spent most of his life in gaol and hence, as I indicated earlier, the risk of institutionalisation. She recognises that he needs a facility to help him adjust after he is released and she will provide whatever support she can in that regard.

53. The offender, as I said, wrote expressing his remorse. It is appropriate that I refer to that. I should observe that I am well aware of the statements of principle given by Smart AJ in the Court of Criminal Appeal in the decision in Qutami [2001] NSWCCA 353. The headnote there succinctly states the proposition at item 4:

“Reliance appears to have been placed on statements made by the prisoner to psychiatrists and psychologists. Those statements were admissible, but considerable caution should be exercised in relying upon them when there was no evidence given by the prisoner.”

54. The history provided by Dr Furst in the report he wrote on 25 June 2019 however is well supported by objective sources. The attributions there given the offender I would accept were faithfully represented in the report and were a reflection of the offender’s attitude and state of mind at the time of the consultation leading to the report. The offender did not give evidence, he was not cross-examined, but I am confident in the material that I have and that I can rely upon the opinion by Dr Furst and the premises upon which the opinion was reached including the representations attributed to the offender.

55. In contrast here is the letter he wrote on 21 June 2019; I have no information before me as to how this document came into existence, it is typewritten which is unusual, documents from people in custody often come in handwritten form. It is signed. I might say that it is well constructed, reflects a measure of intelligence and capacity for expression. It contains the following:

“Dear Your Honour,

I would like to apologise for my actions on 12 July toward police officer and his family. My state of mind wasn’t in the right place cause I hadn’t been taking my medication and I felt suicidal and I wanted to kill myself by getting myself shot, knowing others have been shot in the past armed with a knife. I’m now back on my medication. I realise and see clearly my actions were wrong and I have hurt people and my family and wish I could take it back what I’ve done. I’m glad I’ve got the help I’ve needed and will continue my medication with my family’s help so I maintain good mental health. Again, I’m sorry for my actions.”

56. The proposition that the offender was experiencing suicidal ideation at the time he committed this offence is challenged by the fact that he fled from the scene after the third strike. However, this was a disordered mind, I accept, and one cannot attribute to the offender the capacity for rational thought and decision-making in the hope of executing what his expressed plan might have been. Clearly, the police officers much to their credit did not draw their weapons notwithstanding the life-threatening attack which was executed by the offender. They were able to bring him under control using a Taser thereby minimising the risk of harm to him.

57. The offender has pleaded guilty to this crime of specific intent and has thereby acknowledged all of the elements that would have otherwise been required of the Crown to be established beyond reasonable doubt. As was indicated in the course of submissions the proposition upon which the Court is asked to determine sentence is that he intended to inflict grievous bodily harm by the attempt that he made but at the same time after inflicting that injury he anticipated that he would lose his life.

58. Dr Richard Furst, psychiatrist of note, as I said provided his report on 25 June 2019. The offender is known to him from fitness and pre-sentence assessments in relation to a total of six unrelated break and enter offences between November and December 2015 and he made reference there to the content of his earlier reports in June 2016, January 2017 and October 2017. The sources of information that he had available to him included assessment at the Parklea Correctional Centre in May 2016, at the MRRC in January 2017 and in September 2017 and then June 2019. He had the agreed facts on sentence, the police facts, his mother’s statement, the breach of parole report, his antecedent history, his custodial management record, Justice Health medical records, medical records from Hornsby Ku-ring-gai Community Health, a report from psychiatrist Dr Andrew White, CCTV footage from the Eastwood Police Station and the earlier reports authored by Dr Furst.

59. This report informs me that the offender was born in Sydney. He attended school until Year 11. There were no indications of intellectual disability. His mother’s employment history is described. His father suffered an injury that left him with a disability pension. His home life was described as good. He studied rigging and scaffolding at TAFE, it appears, after his schooling. He gave a history of mood swings, irritability and anger issues. At p 3 Dr Furst wrote,

“He has a history of consistently poor insight into his schizophrenic illness, which was diagnosed several years ago in custody, as is apparent from a review of his Justice Health notes, outlined in the ‘Review of Relevant Documents’ below.”

60. There is reference to an assessment in May 2016 where the offender reported he had stopped taking his antipsychotic medication shortly after being released on parole; a situation analogous, Dr Furst writes, to his more recent history of stopping his medication when on parole in June 2018. He is said to have had superficial insight in January 2017. His first symptoms of a psychosis were evident around September 2009. Dr Furst then listed the delusions and hallucinations represented by the offender that centre upon beliefs that the police had inserted a chip into his body and were tormenting him. He was assessed by mental health nurses and psychiatrists in custody and offered medication in the early months of 2016 but his insight was poor and he refused it until admitted to Long Bay Hospital. He had been taking antipsychotic medication since his discharge from the Long Bay Hospital and remained on a combination of medications and was being managed pursuant to a forensic community treatment order which reflected his low level of insight into his illness. He said he felt all right when assessed in September 2017 but reported hearing voices on a daily basis and he believed people were talking about him. He confronted other inmates at times about this. He maintained that the police had put a chip into him in 2011 and it was still there when assessed in September 2017. He expressed the belief that he could speak to a person on the radio. There was evidence of low mood, lethargy, difficulty in getting going in the morning. He found it hard to think clearly at times and felt confused on occasions, indicative of cognitive deficits. These delusional beliefs and hallucinations and cognitive symptoms and his poor insight were still active problems when he was assessed by Dr Furst in September 2017.

61. His drug and alcohol history is of concern. His alcohol abuse dated back to when he was aged 12. He would binge drink with up to two to three bottles of spirits at a time at night. Cannabis left him paranoid. He stopped using cannabis when he was 17, because it made him paranoid. He had been using the drug daily prior to that age. There was previous use of MDMA, also known as ecstasy, and methylamphetamine, also known as ice, from the age of 14 to 15 years and he used cocaine on the weekends. According to his Justice Health file amphetamines were an ongoing problem till he was aged 20, when he committed two armed robbery offences. He spent five years in gaol; he was released in August 2015, before a further relapse into using methylamphetamine. According to Justice Health records he abused drugs in gaol, sharing needles and as a consequence contracted hepatitis C. He was submitted to methadone between 2011 and 2015. His history includes drug-related offending. He attempted William Booth’s program for four months in 2008, before being arrested for an affray. He had drug and alcohol counselling through Community Drug and Alcohol Services at Ryde Community Health Centre. He was dosed with buprenorphine during a brief period of liberty between August and December 2015. He was using about 0.2 grams of methylamphetamine every couple of days in December 2015 at the time of the multiple break and enter offences.

62. His medical history is confined to the hepatitis C. There is a list of his prescribed medications. There is no family history of mental illness reported. Under the heading “Offence Related Issues” it is noted that his mother was recovering from breast cancer; his father had recently had a stroke. Once again, the Court extends its sympathy to these parents.

60. He was subject to a community treatment order, with follow-up organised through the Hornsby Ku-ring-gai Community Mental Health team. He had a case manager and a psychiatrist. He was given his depot injection of Invega Sustenna fortnightly. His depot was due on 22 June 2018. Apparently it was administered and he was due for his next on 20 July 2018. The offence occurred, as I have noted, on 12 July 2018 and as was acknowledged in the course of submissions he had ceased his medication prescribed for oral ingestion.

61. At p 6 Dr Furst wrote,

“As has been the case on previous occasions when released to the community, Mr Matthews stopped taking his prescribed oral medications...about three weeks after his release from custody.

He reported relapsing into using ‘ice’ again, despite his asserted intentions to stay drug-free when assessed for this pre‑sentence report in September 2017. He stated he used ‘ice’ from around the end of June, ‘a few points here and there’. He last used ‘ice’, according to his self-report, only a few hours prior to the offence in question around 3am at Eastwood Police Station.”

65. There is reference to the offender hearing voices telling him to kill himself; his feelings of depression and suicide ideation; his paranoia and his claim that he went to the police station because he wanted to be shot. He thought that would occur when he scared a police officer. The proposition that he intended to scare a police officer does not reflect the elements of the offence that the offender has acknowledged; it is a crime of specific intent, as I noted earlier and as is conceded in these proceedings.

66. There is then a history of his state of mental health over time, beginning in May 2016 through to June 2019. There is reference to the records of Justice Health summarised in detail, with reference to entries in October 2008 through to September 2018, including the various comments and points of note that Dr Furst has drawn from the source documents.

67. Dr Furst notes that he meets the criteria for (1) schizophrenia, chronic and treatment-resistant; (2) substance use disorder (methylamphetamines, opiates, benzodiazepines); (3) antisocial personality disorder. The symptoms of schizophrenia date back to September 2009 and were more pronounced from December 2010, including recurrent psychotic symptoms and poor insight noted on several reviews over the past eight years. There is a description of the schizophrenia and the impact it has upon a sufferer. I should quote from p 14:

“Schizophrenia is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought forms, difficulty processing information, mood instability, and bizarre behaviour as a consequence of the illness. Frequent symptoms include paranoid beliefs, self-referral thinking, grandiose delusions and thought disorder.

Schizophrenia is thought to be biologically driven because of abnormalities in dopamine transmission, differences seen in brain volume and a genetic transmission. It usually runs a chronic course requiring hospitalisation during acute episodes and the need for longer term treatment with antipsychotic medication (tablets or injections).

Given Mr Matthews lack of insight and previous non-compliance with treatment, depot medication and community treatment orders are generally indicated in managing his schizophrenic illness. However, this plan was (sic) being tried in June 2018 and failed in dramatic circumstances only six weeks later on 12 July 2018 at Eastwood Police Station.”

68. Dr Furst referred to an alternative approach, including the trial of Clozapine. He continues,

“Mr Matthews also has a history of abusing ‘ice’ [methylamphetamines], opiates and benzodiazepines] over a number of years, consistent with a substance use disorder. He will require specialised drug and alcohol counselling/rehabilitation, as he appears to have little or no capacity to resist using drugs when at liberty in the community.”

69. His opinion is that he was suffering from schizophrenia at the time of the offences. I have no difficulty accepting that diagnosis.

70. Once again, at p 15, there is reference to a quote attributed to the offender; that he was trying to scare the police officers “so they’d shoot me” and his suicidal ideation. But, as I noted, his plea of guilty to the crime of specific intent extends his conduct beyond merely wishing to scare the police officer upon whom he was focussed.

71. When he is eligible for parole he will need to be stepped down into a psychiatric in-patient unit for appropriate treatment before he can enter the community subject to a community treatment order appropriately constructed to facilitate to the extent that one might his rehabilitation and the protection of the community.

SUBMISSIONS

72. Both parties provided written submissions, to which they spoke in the course of the hearing of the matter. I have dealt with, I believe, much of what has been provided to me. I have dealt with the objective gravity, the aggravating factors upon which the Crown relies. I accept the Crown’s submission that there is a high risk of re-offending in the community, drawing upon the history that the offender has so far demonstrated through his life, burdened as he is with schizophrenia, in respect of which he has failed to continue with the treatment and medication that was there to assist him, while at the same time resorting to prohibited drugs that could have done him only harm, exacerbating the problem with which he is burdened. His non‑compliance with medication and his resort to the drugs, particularly methylamphetamine, is of concern to the Court.

73. I accept that he poses a significant risk to the community and I accept that, as I have said, he has a risk of re-offence, properly described as high.

74. Submissions made on behalf of the offender remind me that this is not a standard non-parole period offence by reason of it being charged as an attempt, even though the substantive offence carries a standard non-parole period of seven years. I do not agree with the submission made that the objective seriousness of the offence falls within the lower range of objective seriousness, bringing into account those matters I have identified in the analysis earlier provided. I agree with the submission that an attempt would not be punished as severely as a completed offence in accordance with what was said in R v Falls [2004] NSWCCA 335, particularly the judgment by N Adams J.

75. Moral culpability is reduced, I am satisfied, in accordance with the authorities that are identified in the submissions including Shine v R [2016] NSWCCA 149. This is a more recent iteration of the relevant statements of principle found in earlier decisions such as Engert, Court of Criminal Appeal, 20 November 1995 and De La Rosa [2010] NSWCCA 194 that are well-known to the criminal courts.

76. It is conceded that the status of the victim as a police officer is an aggravating factor; that the weapon is an aggravating factor; that the antecedent record is an aggravating factor to be applied in accordance with Veen v R (No 2) Ibid. Protection of the community is conceded as a matter that arises.

77. I am asked to view the post-traumatic stress disorder as less than substantial; I have already expressed my view with regard to that bearing in mind I do not bring it into account as an aggravating factor, drawing upon what is provided by the victim impact statement and also the reports from the psychiatrist. I am reminded of what Sperling J said in Hemsley [2004] NSWCCA 228 reiterating what was said previously and other well-known authority, as I said, Engert ibid, reported at (1995) 84 A Crim R 67, particularly the judgement of Gleeson CJ as he then was, balancing the extent to which there might be reduced moral culpability, and the extent to which there is a greater burden in custody, against which one must bring to account the risk to the community within the concept of specific deterrence.

78. I agree that there are special circumstances in this case that will require a shorter period in custody below the ratio provided in s 44 Crimes (Sentencing Procedure) Act. It is conceded that no sentence other than imprisonment is warranted in this case in accordance with s 5 of that same Act and all of the purposes of sentencing articulated in s 3A of the Act are engaged. I agree that punishment must be ameliorated at least within subjective terms because of the low moral culpability. I must address the need to deter the offender from further offending and that must include the obligation he has to maintain treatment including medication and to abstain from prohibited drugs including methyl amphetamine and opiates and benzodiazepines.

79. I agree that the need to deter others from committing such conduct has a limited role because he is not an ideal example upon which to apply the principle of general deterrence. There is a need to protect the community from the offender and there is a need to do what the Court can to facilitate his rehabilitation which includes, as I have indicated, compliance with his treatment and abstinence from illicit substances. The extent to which he must be shown to be accountable has a limited role in this case. The Court must make a statement to denounce the conduct upon which the offender engaged leading to where he is now, the extent to which that should impact upon the assessment of sentence though is again limited.

80. Police officers have a dangerous and difficult job. Regrettably knives used as weapons are becoming more common out on the street. It should be appreciated that in the view of the Courts’ generally the use of knives in any attack will be dealt with harshly with appropriate punishment in the case that warrants it. I must also recognise the harm that was done to the victim and to the community because of the impact upon it by the loss of this police officer from his service.

81. I am certifying the Form 1 to confirm that I am taking the matter into account.

THE SENTENCE

82. The offender is convicted of the offence to which he has pleaded guilty. I impose a non-parole period of imprisonment of 4 years and 6 months commencing on 12 July 2018 and expiring on 11 January 2023. I impose a further period of imprisonment of 3 years to commence at the expiration of the non-parole period, which shall commence on 12 January 2023 and expire on 11 January 2026. I have allowed a 25% discount to the sentence that I would have otherwise imposed; thus the overall sentence is one of 7 years and 6 months including the non-parole period commencing on 12 July 2018 that expires on 11 January 2023 with the balance to expire on 11 January 2026.

83. Being a sentence of more than three years the offender will be eligible for an application for parole at the expiration of the non-parole period and the parole will be supervised, I expect, in accordance with his particular needs as identified in this judgement.

84. I shall leave the material on the file so that it will be available to the parties or other purposes for such period as they required. Justice Health will have all of their material.

85. I will send Dr Furst’s report along with the papers for the offender.

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Decision last updated: 22 July 2019