R v McWaters

[2019] NSWDC 872

District Court

New South Wales

Medium Neutral Citation:

R v McWaters [2019] NSWDC 872

Hearing dates:

30 April 2019

Date of orders:

12 June 2019

Decision date:

12 June 2019

Jurisdiction:

Criminal

Before:

Judge W Hunt

Decision:

Sentenced to imprisonment for a period of 3 years and 7 months with a non-parole period of 2 years and 9 months.

Catchwords:

CRIMINAL LAW – Sentence – Reckless wounding in company – Aggravation – On parole at time of offending.

Legislation Cited:

Crimes (Sentencing Procedure) Act
Crimes Act.

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1; [2010] NSWCCA 194
R v Callahan [2006] NSWCCA 58
R v Jinette 2012 NSWCCA 217
R v JW (2010) 77 NSWLR at 7).

Category:

Sentence

Parties:

The Crown
Dale McWaters

Representation:

Counsel:

Solicitor:
Director of Public Prosecutions
Morrisons Law Group

File Number(s):

2017/260133

Judgment

1. HIS HONOUR: Dale McWaters is before the court for sentence in relation to one offence which is an offence of reckless wounding in company in breach of s 35(3) of the Crimes Act. That matter is provided the maximum penalty of ten years and a standard non-parole period of four years. I have regard to both the maximum penalty and the standard non-parole period as benchmarks or guideposts in the way contemplated by the authorities. The offender was committed for trial on this and a more serious offence from the Wollongong Local Court on 21 May 2018 and on the first day of a listed trial on 8 October 2018 a plea of guilty was entered to an amended indictment that provided this one count on 8 October 2018 before me at Wollongong District Court. Although the offender was arrested in relation to the incident offence on 27 August 2017 he then, upon a revocation of his parole, entered into relatively shortly before the commission of the offence, served the balance of parole from 27 August 2017 until 20 May 2018. I will return to that issue in due course.

2. I sentenced a co-offender, Carl Lawrence on 24 October 2018 at Wollongong District Court in relation to a distinct charge of assault occasion actual bodily harm. Although it is the presence of Mr Lawrence at the scene which means that the index charge can rely on an averrment of being “in company” the offending of Mr Lawrence, including his charge and the criminal antecedents of this offender and Mr Lawrence mean that both parties accept that parity issues do not strictly arise in relation to this matter (see R v JW (2010) 77 NSWLR at 7).

3. These reasons for sentence should be understood to be ex tempore reasons delivered on the day that I considered all of the written evidence and both the written and oral submissions of the parties. The facts are agreed and are extracted in a statement of agreed facts that is part of the Crown bundle of 32 paras. I do not intend to read all of the facts onto the record but extract a summary from that document.

4. On 24 August 2017 the victim Kolby Langlow contacted this offender by Facebook messenger for the purpose of obtaining drugs. At about 8.00am that day the offender arrived as a passenger in a vehicle driven by his then partner. The offender was seated in the front passenger seat, another passenger was in the back seat and the victim entered also into the back seat of the vehicle to complete the transaction. Within about two minutes another car arrived that had the co-offender Carl Lawrence in it. Carl Lawrence got out of his vehicle and approached the vehicle in which the victim was seated. The victim later told police that there was a dispute with Mr Lawrence over a stolen car. There was also a dispute with Jessica McGhaan who was accompanying Mr Lawrence. He told police he had had no pre-existing dispute with this offender. At the time of Mr Lawrence’s approach the victim saw that this offender had a knife. He described the knife as being a kitchen or a steak knife with a blade of about 15 centimetres in length. The victim threw two punches to Mr McWaters face and attempted to crawl over him to get out of the passenger side window. As he did that Mr McWaters used the knife to stab him seven times. The wounds were occasioned to his chest, forearm, knees and thigh. As the victim got out of the car Carl Lawrence punched him a number of times to his face. It should be observed that I sentenced Mr Lawrence on the basis that he did not understand Mr Langlow to have been stabbed by this offender at the time of the punching.

5. The victim ran away and into his house. He grabbed a machete and chased the offenders and the various passengers away. He used the machete to hit the back of the vehicle that Mr Lawrence was in. An ambulance was called and the victim was conveyed to Wollongong Hospital. He ultimately occasioned a one centimetre wound below the right clavicle, a one centimetre wound to the left pectoral region, a one centimetre to the left forearm, two wounds to the side of his right knee, a small wound above that knee, a superficial wound to the left thigh and a graze to his forehead. There were no wounds located on his back. The victim underwent surgery for what is described as a knee washout, his wounds were cleaned and dressed, he was given antibiotics and he was discharged from hospital three days later.

6. Ultimately there was a police investigation that involved testing of various DNA and looking at closed circuit television footage. A mobile phone was seized from this offender at the time of his arrest which disclosed between 6.51 am and about 8.02 am communications backwards and forwards between this offender and the victim would seem to be of an affable nature and consistent with an interest in at least exchanging drugs. In later messages this offender denied stabbing the victim and detailed Mr Lawrence having turned up unexpectedly and asserted that it was Mr Lawrence who stabbed the victim. That account is disavowed by his plea of guilty. It is common ground that the offence was committed in breach of conditional liberty and it is an aggravating circumstance that there was the actual use of a weapon which is not an element of the offence. It is a mitigating circumstance that there was a plea of guilty.

7. In terms of assessing objective seriousness of the offending, among other things I take into account that while the temporal focus of the event was in very short compass that there were a number of wounds, albeit none of them seriously occasioned. There were seven stabbings of Mr Langlow at a time that he was in a relatively confined space, that is trapped within a vehicle with Mr Lawrence as an additional aggressor on the scene. It must have been a scary episode for Mr Langlow. Taking into account the number of blows and the circumstances together with a limited level of pre-planning, as is demonstrated by the text messages, I assess the objective seriousness of the matter as being just above the mid-range. I do take into account that there was a small level of provocation by way of the victim punching this offender twice but the response was clearly massively disproportionate to that level of provocation. It does not serve to mitigate the offence that Mr Kolby was apparently engaged or sought to be engaged in some kind of drug transaction with Mr McWaters nor does that fact make Mr McWaters’ offending more serious.

8. Moving to some matters that are personal to the offender, he has a record that denies him leniency. He was first before the court in 2010 in relation to a number of serious matters in the Children’s Court, some of which resulted in control orders being made. In 2013 he was sentenced to a period of imprisonment in relation to a range of driving and dishonesty matters that do not constitute personal violence matters and in 2014 he was sentenced by the Local Court to a range of matters not involving violence. Shortly before this matter he was admitted to parole and had only been on parole a matter of weeks before the commission of this offence. His parole was revoked solely in relation to this matter. Although that is an aggravating circumstance because his parole was revoked and I plan to commence the sentence at the expiration of the balance of parole period, this sentence is not significantly increased by virtue of that aggravating circumstance consistent with the principles in R v Callahan [2006] NSWCCA 58, that is there ought not be a perception of double counting.

9. The custodial record reflects that upon the expiration of his balance of parole the offender returned to remand status. This is a matter that has been before the court for some significant period of time since the entry of the plea. None of those delays were because of delinquency on behalf of the offender, they are rather a need for some psychological investigation of him and then some difficulties in terms of mediating my diary and the availability of the legal representatives. What that means is that the offender has now spent a significant period on remand in maximum security and I take that matter into account in a diluted fashion in terms of tempering the sentence that would otherwise be imposed.

10. Apart from an analysis of his record and his custodial history, the principal source of information about the offender is to be found in the careful report of Bradley Jones, Forensic Psychologist who assessed the offender on 10 January this year, having access to relevant material. In terms of a formal diagnosis which I accept the offender is assessed as having opiate use disorder that is in sustained remission on the basis of the treatment that he is receiving in a controlled environment since he has been back in custody. Although Ms Hughes who appears for the Crown identifies that the history given to Mr Jones has not been the subject of sworn evidence by the offender I am prepared to accord it weight because it seems to me that there is not any particularly self-serving statements in the history provided by Mr McWaters. It must be said that the offender had a very chequered upbringing. In December 2017 the offender’s brother was shot and killed in the driveway of the family home at a time that he was 18 years of age. The offender has two surviving siblings. He enjoys a close relationship with his father when that person is not in custody. His father first served a custodial sentence for drug matters at a time when this offender was ten years old and has been in and out of incarceration about seven times since. Whilst the parents initially had a good relationship the family was separated at the time that this offender was 15 years old. Thereafter he moved from grandparent to grandparent and lived in about ten different premises all within the local Wollongong/Warilla area. The offender has enjoyed two relatively long term relationships.

11. The offender was educated at Warilla Public School and thereafter at Koonawarra. He was placed in a disability class from Year 5 onwards. Part of the difficulty that he experienced during his growing up was that he and members of his family were involved in a serious car accident while he was a juvenile. This had the result of both he and his parents suffering significant injuries. Relevantly his mother suffered brain, head and facial injuries and this offender was admitted to hospital for about two to three months while his parents remained in hospital between four and five months. After the accident the offender’s ability to learn and be educated became more difficult. When he was about 15, the offender had another motor vehicle accident that involved his uncle and cousins which found him in hospital with a broken shoulder, leg and arm. In combination with some intellectual deficits that I am about to move to it seems that the offender’s background, while not as unfortunate as some, has many of the artefacts of dysfunction that were discussed by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 excepting that there are often countervailing considerations. This is a matter where I am persuaded that the offender’s moral culpability for the offence, particularly the apparently impulsive use of the knife, is moderated in all the circumstances.

12. Mr Jones observes that the offender’s tendency to engage in impulsive behaviours may have a number of causal factors, including possible head injury in relation to the reported motor vehicle collision, emotional and behavioural dis-regulation resulting from his disjointed and troublesome childhood and adolescence and lack of maturing of the frontal lobes. Additionally it is possible that his impulsivity may result from an interplay of all three factors. It must be said that the offender presents as being somewhat cognitively impaired in terms of his presentation in court notwithstanding having not given sworn evidence. However relevantly Mr Jones ultimately opines at para 24 of his report:

“Unfortunately the current assessment has not been able to identify an exact cause nor disorder notwithstanding information that would suggest there is a cause [referring to the offender’s impulsivity].”

13. What that means is that I am not able to make a finding of there being any causal link between any intellectual deficits or psychological difficulties that the offender may suffer from that would further reduce his moral culpability or have other impacts in the way contemplated by DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1; [2010] NSWCCA 194.

14. His custodial history shows that he has continued to have difficulties with discipline while in the prison community. That and the commission of this offence so shortly upon his release to parole mean that notwithstanding Mr Jones’ assessment that he is a moderate risk of reoffending, I have a very guarded view about his prospects of rehabilitation. I am unable to find that he is unlikely to reoffend. Having said that the offender expressed his remorse and that in combination with his plea persuades me that on balance I am able to accept that the offender is remorseful. His barrister effectively puts that notwithstanding that he is a relatively young man he is at the cross-roads where the offender understands that he needs to apply himself to the task of rehabilitation if he is to succeed in that regard.

15. In terms of the utilitarian value of the plea it was entered on the first day of trial but in circumstances in which from the court record I am able to tell that Mr Langlow was somebody who would have been brought to court in custody to give evidence for the prosecution. The fact that that did not need to happen and the court time was saved means that within the permissible range of 5% to 10% that was indicated by the responsible submissions of both parties, I am persuaded to apply a utilitarian discount of 10%. In fact with a little bit of rounding in favour of the offender it is just slightly more than 10% when I come to the final figures in relation to this matter.

16. As I have indicated I intend to wholly accumulate this sentence on the period served for balance of parole. That of itself excites an entitlement to special circumstances. As a relatively young man he has spent a fairly significant period of his late teenage years and early twenties in custody. Consistent with what Johnson J said in R v Jinette 2012 NSWCCA 217 at 103 it is in the protection of the community if sentences can be structured to avoid the risk of a person becoming institutionalised. The reason for that is because if people like this offender are at risk of being institutionalised the threat of imprisonment fails to become either a generally deterrent or specifically deterrent effect. I am prepared to find, without opposition from the Crown, special circumstances in this matter to rearrange the relationship between the head sentence and the non-parole period that would otherwise be governed by s 44 of the Crimes (Sentencing Procedure) Act. I have had regard to all the purposes of sentencing, this is a matter where some level of general deterrence, denunciation and specific deterrence has work to do. That said this is an offender who is relatively young and the purposes of rehabilitation should not be abandoned.

17. Given I propose to recommend that the State Parole Authority set a particular parole conditions in due course, the treatment plan that is set out by Mr Jones at para 28 of his report in light of that recommendation. Mr Jones said that the risk management and treatment plan should be:

“To manage and decrease his risk of recidivism I believe it is in Mr McWaters’ interest and indeed the interests of the community in general for him to obtain treatment that includes (a) illicit drug abstinence; (b) regular drug urine analysis, screening; (c) drug relapse prevention counselling; (d) vocational education and social skills training; (e) further psychological, psychiatric, medical assessment to identify a causal factor for his tendency to act impulsively; (f) psychotherapy to address his impulsiveness and confirmation to social norms and (g) monitoring by Community Corrections personnel of Mr McWaters non-custodial environment and support networks to limit destabilising influences and to build effective support systems.”

18. I accept Mr Jones’ opinion that should this offender engage in a treatment plan that is provided in those terms that his offending behaviour where the rehabilitation prognosis is encouraging.

19. Just stand up would you Mr McWaters. In relation to the offence you are convicted. But for the sentencing discount of about 10% the starting point of the sentence, having regard to all the factors that I have identified, should have been four years. Accordingly the sentence that I impose is three years and seven months to date from 21 May 2018 and expiring on 20 December 2021. The non-parole period is two years and nine months which means the earliest date of consideration for your release to parole is 20 February 2020. I find special circumstances and I recommend that the State Parole Authority give effect to the treatment plan that I have outlined above in extracting that plan at para 28 of Mr Jones’ report.

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Decision last updated: 27 April 2020