R v McCook

[2019] NSWDC 636

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v McCook [2019] NSWDC 636
Hearing dates:	6, 27 September 2019
Date of orders:	27 September 2019
Decision date:	27 September 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Paragraphs [45] to [48]
Catchwords:	CRIME — Violent offences — Reckless wounding — Wound with intent to cause grievous bodily harm — offences committed in custodial environment SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity SENTENCING — Subjective considerations on sentence — Special circumstances — Institutionalisation
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 R v McNaughton (2006) 66 NSWLR 566 Veen v R (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Ashley James McCook (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: M Keaney (Offender)   Solicitors: E Freelander (Crown) M Adam (Adam & Associates) (Offender)
File Number(s):	2017/00275966, 2018/00346749

SENTENCE

1. HIS HONOUR: The offender is to be sentenced for the following offences to which he has pleaded guilty. The first is that on 27 May 2017 at Goulburn whilst in company with Todd Pearce and Damien Russell he recklessly wounded Nathan Patterson. That is an offence under s 35 subs (3) of the Crimes Act and has a maximum penalty of ten years’ imprisonment and there is an applicable standard non-parole period of four years. The second offence is that on 9 November 2018 at Silverwater he wounded Mitchell McPhail with intent to cause grievous bodily harm to him. That is an offence under s 33 sub-s (1)(a) of the Crimes Act. The offence has a maximum penalty of 25 years’ imprisonment and there is an applicable standard non-parole period of seven years. The facts in relation to both offences are agreed.

Agreed Facts

Recklessly wound in company offence

2. In relation to the recklessly wound in company offence in 2017 the facts are as follows. The victim, Mr Patterson, was serving a sentence in Goulbourn gaol. This offender and his two co-offenders were also inmates at that correctional facility. On 27 May 2017 the victim was moved into Unit 2 which housed this offender and the two co-offenders. At around 2pm on 27 May 2017, only hours after Mr Patterson had been moved into the yard, he was approached by this offender and his two co-offenders near the awning and gateway which leads to an area referred to as “the circle”. At that time Mr Patterson was attacked by the group and stabbed a number of times by the three offenders before he escaped running towards the showers. The victim fell to the ground and was further set up on by the group and again was stabbed a number of times by the same three offenders. The Crown accepts the offenders intended to inflict something less than really serious bodily injury.

3. Chemical munitions were deployed by Department of Corrective Services officers which caused the group of attackers to cease their assault upon Mr Patterson. The victim was removed from the yard and Corrections and medical staff observed that he had suffered a number of stab wounds to his back and shoulders. This offender and his two co-offenders were removed from the yard. Following their removal all remaining inmates were removed and a crime scene declared. A review of CCTV footage showed the co‑offenders throw items over the fence and into neighbouring yards. Police located two home-made shivs. Both weapons were forensically tested and each had DNA matching the profile of the victim located on them, one of the weapons had DNA matching the profile of the offender, Russell, on the handle. The entire incident was captured by CCTV, and although the agreed facts say it was to be tendered it was not actually tendered in this particular sentence, and was witnessed by numerous Corrective Services officers.

4. The victim was attended to by New South Wales police officers for his injuries before being conveyed to Goulburn Hospital where he was further stabilised prior to being air lifted to Canberra Hospital for further specialist treatment for his wounds. He suffered six wounds approximately 2 centimetres in length on his outer shoulder blade, two in the middle of his back and two on his lower back. A CT scan revealed a left side pneumothorax and a right side pulmonary contusion. A left side chest drain was inserted for the pneumothorax and was removed on 31 May 2017. Staples to his wounds were later removed in the gaol. The victim declined to provide information to the police about the matter and the offender and his two co-offenders declined to be interviewed.

Wound with intent to cause grievous bodily harm offence

5. In relation to the agreed facts for the wound with intent to cause grievous bodily harm offence the following is taken from the agreed facts:

6. The offender and the victim were both inmates serving custodial sentences at the Metropolitan Remand and Reception Centre at Silverwater. On Friday 9 November 2018 the offender and the victim were both housed in pod 7 at the MRRC. At about 7.45am on that day a number of inmates from that pod were lining up to obtain their daily dose of methadone. One of the Correctional Officers in that area, a Mr Ruffello, observed the offender attend to the window and drink his methadone and walk away. He observed that the victim was two or three spots behind the offender in line. CCTV footage obtained from pod 7 shows the offender walking away from the methadone window at 7.43am. The offender then walks past the line of inmates waiting for their turn and sits on a table near the line of inmates with his hands in his pockets, observing other inmates in the direction of the victim. At 7.44am the offender runs towards the victim at a fast pace for a short distance and retrieves an instrument from the pocket of his pants. He then strikes the victim towards the head, using the gaol-made weapon known as a shiv, a total of five times before a Corrective Officer restrains him. The shiv was about 20 centimetres long and of light weight having been made out of a piece of aluminium and wrapped around a piece of cloth which was used as the handle. There are some images of the shiv attached to the agreed facts.

7. The victim was escorted to the main clinic to receive treatment. An acting unit nurse at the MRRC Health Unit observed the victim to be actively bleeding from the back of his head. He was taken to the Health Unit. She undertook an examination of his injuries and identified four lacerations, two to his head and two to his hands.

8. The first laceration was to the right hand rear side of the victim’s head. The injury was approximately 3 centimetres in length and 1.5 millimetres deep. The injury had broken both the epidermis and dermis and hypodermis and was actively bleeding and required three stitches.

9. The second laceration was to the left and right side of the victim’s head. The injury was one centimetre in length with no active bleeding. This injury was more of an abrasion and did not require suturing.

10. The third laceration was to the top left of his hand, 2 centimetres in length and 5 millimetres deep. It too broke the epidermis, dermis and hypodermis and the injury was actively bleeding and required one suture.

11. The fourth laceration was to the top of his right hand, 1 to 1.5 centimetres in length, .3 millimetres deep with no active bleeding. The nurse determined that the injury required suturing but due to the patient being uncompliant a sterile strip was used instead.

12. At about 10am on 9 November 2018 police attended the MRRC in response to the incident and collected the CCTV footage. Police cautioned the offender on 12 November 2018 and he declined to participate in the interview. A blood swab taken from the tip of the shaft of the makeshift weapon was conveyed for analysis and it matched the DNA of the victim.

Assessment of Objective Seriousness

13. I turn then to my assessment of the objective seriousness of the two offences. This offender and his co-offenders in relation to the recklessly wound in company offence were engaged in a joint criminal enterprise and the offender is criminally liable for the offence on the basis of that doctrine. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed, a particular participant’s level of culpability is to be assessed by reference to the conduct of that participant.

14. The incident here happened quickly and there was a level of ferocity associated with it, however I note the Crown’s concession as recorded in the agreed facts, that it accepts that the offenders intended to inflict something less than really serious bodily injury. According to the agreed facts this offender and the co-offenders each stabbed the victim although it is not possible to determine how many times they each stabbed the victim. I note the victim suffered six wounds and his injuries were significant in that a pneumothorax occurred requiring a drain to be inserted and hospitalisation. A weapon was used in the commission of the offence. As I said when sentencing the co‑offenders, the offence is a serious one but I assess its subjective seriousness as being a little below the mid-range level of objective seriousness.

15. In relation to the wound with intent to cause grievous bodily harm, the 2018 offence, the offence was unprovoked and appears to have had some level of planning, given the use of the shiv. The offence appears to have been of relatively short duration but to have an element of ferociousness associated with it. A weapon again was used. The level of injury suffered by the victim was not long-lasting or life-threatening although I note that the victim’s head had in part been targeted during the attack. In total four sutures were inserted in two of the wounds and there is no suggestion in the facts that long-term scarring occurred. The victim did not require hospitalisation. Given the level of injury that was occasioned to the victim I assess the objective seriousness of this offence as falling below the mid-range level of objective seriousness, noting that the level of injury inflicted is a significant factor to have regard to when assessing the objective seriousness of such offence.

Offender’s Subjective Case

16. I turn then to the offender’s subjective case. He is currently 38 years of age. He has an extensive criminal history and I note both offences occurred within the gaol system while serving sentences of imprisonment. He has a criminal record as a juvenile in both this State and in Western Australia. He has received, as an adult, sentences of imprisonment for offences of armed robbery, break and entering, robbery, wound with intent to cause grievous bodily harm and reckless wounding. I have before me remarks on sentence of Judge Yehia who sentenced the offender for the wound with intent to cause grievous bodily harm which I just mentioned. That sentence was imposed on 6 March 2015 and I will discuss aspects of her Honour’s remarks a little later.

Criminal and Custodial History

17. The Crown submitted that the offender’s criminal record is such that it is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act and fell within the principles discussed in Veen v R (No 2) (1988) 164 CLR 465, and R v McNaughton (2006) 66 NSWLR 566. The Crown submitted that the offender’s record showed a propensity to violence and a continuing attitude of disobedience of the law. I accept that submission given the extensive nature of the offender’s violent criminal history.

18. The offender has spent a very small part of his adult life in the community. He was 19 years of age when he went into custody on 15 January 2001. He is now, as I say, 38 years of age. During almost the last 19 years he has spent less than 12 months in the community. He was last in the community between 25 May and 7 June 2012, a period of approximately two weeks. The longest period he spent in the community in that almost 19 year period was six months between 15 November 2007 and 5 May 2008. I will return to the relevance of his custodial history later in these remarks when considering the issues of special circumstances and prospects of rehabilitation.

19. He is currently serving a sentence for wounding with intent to cause grievous bodily harm where the non-parole period has expired but the total term does not expire until 5 September 2020 and a sentence for an offence of reckless wounding where the non-parole period expires on 5 August 2020 and the total term expires on 5 February 2022.

Sentencing Assessment Reports and Psychological Reports

20. There is before me a sentence assessment report and two reports by Mr Watson‑Munro, a consultant psychologist, dated respectively 19 June and 29 August 2019. The following is taken from the reports that are before me.

Family Background

21. In terms of his family background the psychological reports record that the offender has three brothers and that his parents separated when he was six years of age and that he was brought up after the separation by his mother and his grandmother. Those reports also record that he has had little contact with his father during his life and the psychologist expressed the opinion that the absence of the father figure in his formative years,

“in part established the platform for his continuing symptoms of depression, anxiety and low self‑esteem and no doubt his early forerun into illicit drug use which commenced at about the age of 13”.

22. He has never married and has no children. The sentence assessment report records that while in custody he has received support from his mother and his siblings.

Education and Employment

23. In terms of his education and employment history the psychological reports record that he completed year 10 in terms of his education and he was frequently absent from school due to truancy and was eventually asked to leave. According to the psychological reports he is illiterate. The sentence assessment report records that his last employment in the community was as a labourer some 15 years ago and he has not been employed in the custodial environment since 2015.

Substance use

24. In terms of his substance use, the psychological reports record he commenced smoking cannabis at 13 years of age progressing to amphetamines at 15 and he became addicted to heroin at 17. The psychological reports record that he has had a substance use disorder in the past and that he is on the methadone program in custody and I note the context in which one of the offences occurred was whilst waiting to receive his dose of methadone. The sentence assessment report records that the offender highlighted a need to engage in alcohol and other drug intervention when released into the community and noted that he has been using illicit drugs sporadically while in gaol.

Psychological/Psychiatric History

25. In terms of his psychological/psychiatric history, the first psychological report records the offender being well oriented as to time, place and person with no indications of psychiatric disturbance. Psychometric testing was said to confirm a clinical impression “referrable to a depressive disorder” although the result of the testing were not included in the report. The second psychological report details the offender reporting that in January 2016 he himself had been viciously assaulted while an inmate which resulted in him being placed in isolation within the gaol system. The psychologist in his second report considered that the offender was suffering a range of psychiatric conditions which included a substance use disorder in partial remission and “features of post-traumatic stress disorder/an adjustment disorder and a severe and recurring depressive disorder”. I note that there is no formal diagnosis of post-traumatic stress disorder or an adjustment disorder.

26. The psychologist considered that the offender has developed hyper‑vigilance in gaol as a consequence of being himself the subject of violent attacks, and this has caused him on occasions to act in an impulsive way with a view to self-preservation. The psychologist expressed the opinion in the second report that “there is a nexus between his untreated mental condition and his offending behaviour”. It is difficult to give a great deal of weight to that expression of opinion by the psychologist where the only diagnosis he in effect confirms is one of severe depression and substance use disorder in remission.

27. Having said that, I am prepared to accept, given the number of violent incidents the offender has been involved in in gaol he is likely to be hyper‑vigilant and to strike out rather than wait to be struck.

28. I also note in Judge Yehia’s remarks on sentence in 2015 the psychological report that was before her Honour which was from a different psychologist recorded that the offender had been diagnosed as suffering from ADHD with an intermittent explosive disorder and a borderline personality disorder. None of those diagnoses are contained in the psychological reports before me and it is unfortunate that Mr Watson‑Munro, it seems, was not provided with the earlier reports and asked whether the offender had in the intervening period received treatment for those conditions that were found to be present in 2015. Based on the material before me, and keeping in mind that her Honour made her assessment some four years’ ago, I am not able to make a finding that there should be some reduction in moral culpability because of a causal connection between his mental health conditions and his offending.

Early Life

29. The evidence concerning his early life does attract the principles in Bugmy v The Queen (2013) 249 CLR 571 in relation to the persistent relevance of an early life of some considerable social disadvantage in sentencing and I have applied those principles here.

Response to Supervision

30. In terms of his response to supervision in the past, while the sentence assessment report records the offender’s willingness to engage in interventions to address his offending behaviour it also records that he has not elected to participate in programs that have been on offer during his period of incarceration.

Attitude Towards the Offending

31. In terms of the offender’s attitude to the offence the sentence assessment report records that he appeared to minimise his actions and place blame on the custodial environment as the underpinning factor that shaped his violent behaviours. He considered his actions were a means to survive in the custodial environment and that violence is the only behaviour that inmates understand. The sentence assessment report records that the offender verbalised his dislike for the victims but was able to communicate the trauma his actions inflicted upon them and the ongoing physical and mental distress they have and continue to have.

32. In contrast to the sentence assessment report, the psychologist recorded that the offender “expressed appropriate regret for his actions” although the psychologist did not record how the regret was expressed or why it was thought to be appropriate, a particular omission in my view from this psychologist’s report. In terms of the future and risk of re-offending he was assessed in the sentence assessment report as having a medium to high risk of re-offending.

Determination of Sentence

33. In terms of the timing of the plea of guilty, the Crown submitted that although the plea of guilty to the reckless wounding offence was only formally entered in February this year it had been offered in December last year, and considered that a discount of between 15 and 20% was appropriate for the utilitarian value of the plea. I will allow a 20% discount for the utilitarian value of the plea of guilty to that offence. In relation to the wound with intent to cause grievous bodily harm offence it was an early plea of guilty in the Local Court and I will allow a discount for the utilitarian value of the plea of 25%.

33. There is limited remorse here when I have regard to the comments in the sentence assessment report. In coming to that conclusion I have also had regard to the fact that ultimately pleas of guilty were entered in relation to each of the charges and that there was an early plea of guilty to the wound with intent to cause grievous bodily harm offence.

34. In terms of his prospects for rehabilitation, when Judge Yehia sentenced the offender back in 2015 in terms of her Honour’s conclusions on his prospects of rehabilitation her Honour said,

“I am unable on the evidence before me to make any finding other than that he has some prospects of rehabilitation if he submits to structured arrangements upon his release. I am particularly concerned in this regard with the conduct while he has been incarcerated”.

36. Since her Honour made those observations he has been sentenced for a further reckless wounding in company which occurred in the custodial setting and stands now to be sentenced for two further offences of violence committed while in custody. I note the assessment in the sentence assessment report that he has a medium to high risk of further offending. In these circumstances his prospects of rehabilitation are poor.

37. The psychological reports that are before me do not specifically address the issue of whether the offender has become institutionalised to the prison environment. The psychological report that was before Judge Yehia in 2015 did address that issue apparently. Her Honour in her remarks noted that, “The offender is so institutionalised that he would have a great deal of difficulty in managing independently upon release from prison”. Her Honour also noted, “The psychologist reports that the offender has started to think of prison as his real home”.

38. In my opinion given the period of his adult life that he has spent in custody there can be no doubt that the offender is institutionalised.

39. The sentence I impose will necessarily be at least partially accumulated upon the sentences he is currently serving. That fact, together with the fact of his undoubted institutionalisation, leads me to make a finding of special circumstances when fixing the non-parole period. Section 56 of the Crimes (Sentencing Procedure) Act applies to this sentence and provides an indication that the commencement date of this sentence should be from the expiration of the non-parole period that the offender is currently serving. The provision applies because the offender is to be sentenced for two offences of violence committed as an inmate and is currently still serving a non-parole period. There remains a discretion however in the Court to direct that the sentence be concurrent or partly concurrent with the sentence the offender is already serving.

40. Given the amount of time the offender has spent in custody since January 2001 and in particular since May 2008 I propose to commence the sentence from 27 August 2017. There will need to be some element of accumulation in the imposition of the two sentences because of the fact that there are two separate instances of criminality and two separate victims.

41. There is a parity issue in relation to the sentencing for the reckless wounding offence which I will now address. I am unable to differentiate the role of this offender from that of his two co-offenders in the commission of the reckless wounding offence. In relation to the co-offender, Mr Pearce, he was 34 years of age and had also had a significant criminal record and was serving a sentence for murder. He too had spent a considerable part of his adult life in custody and I considered him to be institutionalised. He, too, had an early deprived background and his plea of guilty attracted a 10% discount. I considered that in relation to Pearce there was no evidence of remorse and I also considered his prospects of rehabilitation were poor. I did not find special circumstances in relation to Pearce.

42. I relation to Mr Russell I considered that his prospects for rehabilitation were guarded, bordering on poor and that he had limited remorse. I imposed on Russell a sentence of three years’ imprisonment with a non-parole period of two years, having found special circumstances. I imposed on Pearce a sentence of imprisonment of three years with a non-parole period of two years and three months. Both Pearce and Russell received discounts of 10% for their pleas of guilty whereas the offender is to receive a discount of 20%. I have had regard to those sentences when arriving at the sentence to impose on the reckless wounding offence.

43. I have regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which I will not read on to the record. Significant sentences must be imposed on inmates who commit acts of violence upon other inmates in the prison environment. Such acts have the capacity to undermine discipline in the prisons and general deterrence is a significant factor when sentencing for such offences. Also a person whose liberty has been deprived as a consequence of receiving a sentence should not be at risk of being the victim of an unprovoked act of violence. Given the offender’s record here, specific deterrence has a role to play in this sentence.

44. The maximum penalties and standard non-parole periods have been taken into account as legislative guideposts as explained by the High Court in Muldrock v R (2011) 244 CLR 120. It will be seen that I have departed from the standard non‑parole period due to my assessment of the level of objective seriousness and the pleas of guilty.

Orders

45. The offender is convicted of both offences. On the reckless wounding offence I impose a sentence consisting of a non-parole period of one year and ten months with a balance of term of 11 months. That is a total sentence of two years and nine months’ imprisonment with a non-parole period of one year and ten months. That sentence commences on 27 August 2017 and expires on 26 May 2020 and the non-parole period expired on 26 June 2019.

46. On the wound with intent to cause grievous bodily harm offence there is a sentence comprising a non-parole period of three years’ imprisonment with a balance of term of two years. That is a total sentence of five years’ imprisonment which commenced on 27 August 2018. That sentence expires on 26 August 2023. The non-parole period expires on 26 August 2021.

47. The earliest date the offender is eligible to be released to parole is the date of the expiry of the non-parole period for the wound with intent to cause grievous bodily harm which is 26 August 2021. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

48. There is therefore a total head sentence of six years and a total non‑parole period of four years’ imprisonment. The total sentence dates from 22 August 2017, the non-parole period expires on 26 August 2021, the sentence expires on 26 August 2023.

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Amendments

07 November 2019 - Cover sheet - Case citations alphabetical order

Decision last updated: 07 November 2019