R v Michael Patrick Hudson

[2006] NSWDC 140

CITATION:	R v Michael Patrick Hudson [2006] NSWDC 140
HEARING DATE(S):	23 November 2006
JUDGMENT DATE:	28 November 2006
JUDGMENT OF:	Nield DCJ
DECISION:	Offender convicted and sentenced to imprisonment for three years nine months. Fix a non parole period of two years three months, from 26 December 2005 to 25 March 2008, on which date the offender is to be eligible to be released on parole, and a parole period of one year six months, from 26 March 2008 to 25 September 2009. Order that the offender be subject to supervision by the New South Wales Probation and Parole Service whilst on parole during the parole period.
CATCHWORDS:	Sentence after guilty plea - malicious wounding - aggravated and mitigating factors
LEGISLATION CITED:	s35(1)(a) Crimes Act; s3A, s21A Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Fernando (1992) 76 A CrimR 58 R v Ceissman 2001 NSWCCA 73; (2001) 119 A CrimR 535 R v Pitt 2001NSWCCA 156 R v Crombie 1999 NSWCCA 297 R v Cage 2006 NSWCCA 304
PARTIES:	Regina Michael Patrick Hudson
FILE NUMBER(S):	06/61/0060
COUNSEL:	Mr M. Pickin (Offender)
SOLICITORS:	Office of the DPP Dubbo Aboriginal Legal Service Broken Hill

SENTENCE

HIS HONOUR:

1 The offender is Michael Patrick Hudson. He was born on 21 May 1974. Accordingly, he was aged thirty-one years seven months when, on 26 December 2005, he committed the subject offence. He is aged thirty-two years six months now.

2 The offender is of Aboriginal descent. He is the youngest of his parents’ four children. His background and upbringing are outlined in an affidavit sworn 24 September 1996 by his father (exhibit 1) and mentioned in the Probation and Parole Service pre-release report 3 July 1998 (exhibit 2). Suffice it to say that the offender’s early life was a materially deprived and unsettled one. The observations of Wood J in Fernando as explained by him in Ceissman and Pitt are relevant in the sentencing of the offender.

3 The offender attended primary school in the Newcastle area and secondary school in the Dareton area. He completed Year 10, leaving school when he was aged about sixteen years. I do not know any more about his education.

4 Since leaving school, the offender has been mainly unemployed, but he has had occasional casual employments with different employers. I do not know any more about his employments.

5 I do not know anything about the health of the offender and, in the absence of knowing something, I assume that there is nothing untoward with the offender’s physical or mental health.

6 I know that the subject offence was committed when the offender was under the influence of intoxicating liquor, but otherwise I do not know anything about the offender’s use or abuse of intoxicating liquor.

7 The offender is single, never having married. However, he is the father of a child, a daughter, now aged about thirteen years, born to his former girlfriend. I assume, in the absence of being told otherwise, that his daughter lives with his former girlfriend.

8 The offender is not a stranger to the criminal justice system of this State. He has been dealt with for eight offences (see exhibit E), of which four involved the use of violence and four related to the driving of a motor vehicle. Of the four which involved the use of violence, two of them, one of assault occasioning actual bodily harm and one of assault, were committed on 11 October 1995, another of them, that of malicious wounding, was committed on 18 February 1996 (see exhibit F), and the last of them, another malicious wounding, was committed on 4 February 1999, (see exhibit G). Now I am to impose sentence upon him for another offence of malicious wounding. I think that it is obvious and fair to say that he has learnt nothing from the offences earlier committed by him and the penalties imposed upon him for those offences.

9 The circumstances in which the offender committed the subject offence are not in dispute. They are set out in the summary of facts (exhibit A) and the statements of the victim of the offence, Mr Ian Harris (exhibit B1) and the witness, Miss Glenda Hudson (exhibit C), who is the de facto wife of Mr Harris and the sister of the offender. The injuries suffered by Mr Harris are referred to in the summary of facts, his statement and the statement of Dr Malik Majoka (exhibit D). The continuing effect of one of his wounds is referred to in the statement of Mr Harris (exhibit B2).

10 What happened was this. On 25 December 2005 Ms Hudson and Mr Harris had consumed a considerable quantity of intoxicating liquor. They retired to their bed at about 12 midnight. They were, to use the word used by them, drunk when they retired to their bed. At some time between 4.30 and 5am on 26 December 2005 they were woken from their sleep by Ms Hudson’s brother, the offender, kicking open the door into their bedroom. The offender was, like Ms Hudson and Mr Harris, drunk. He was holding a knife, like a kitchen knife, and he demanded “yarndi”, which is cannabis, and “grog”. He jumped onto the bed in which Ms Hudson and Mr Harris were lying and he attacked Mr Harris, stabbing him three times to his chest with the knife. Ms Hudson left the bedroom and, after obtaining a mobile telephone, she called police. The offender left the home and, when he was confronted by his father, who had come to the home, told his father that he had stabbed Mr Harris and asked his father to help him. Then the offender ran away, taking the knife, which was never found, with him.

11 At about 7.50 am on 26 December 2005 the offender was arrested at the home of his father. After being arrested, he was taken to Dareton Police Station where he was charged with the subject offence. He has been in custody, bail not being applied for, since his arrest.

12 On 4 May 2006 the offender appeared before a magistrate in the Local Court at Wentworth for a committal hearing in relation to the offence with which he had been charged. It was to be a paper committal hearing. He pleaded guilty to the charge and he was committed to this Court on a date to be fixed for sentence. The Crown Prosecutor has not disputed that the offender entered his guilty plea to the subject offence at the earliest appropriate opportunity. I intend to discount the penalty that I will impose upon him by 25 percent on account of his guilty plea.

13 On 23 November 2006 the offender appeared before me in the Court at Broken Hill on the sentencing proceedings. He adhered to the guilty plea given by him before the magistrate on 4 May 2006. I received documentary material from the Crown Prosecutor and the offender’s counsel and I heard submissions as to sentence from them, after which I stood over the sentencing of the offender to today.

14 I am now to impose sentence on the offender for the subject offence.

15 The offence committed by the offender, that of malicious wounding, is an offence contrary to s 35 subs (1)(a) of the Crimes Act, for which the proscribed penalty is imprisonment for a maximum of seven years, when dealt with on indictment or imprisonment for a maximum of two years, if dealt with summarily. It is an offence which does not carry a standard non-parole period.

16 It is beyond argument that the offence committed by the offender is a very serious offence. It was an unprovoked, armed and cowardly attack upon an unarmed and defenceless man, who was lying in his bed after he had been woken from his sleep by the conduct of the offender. It was committed by an offender who has served prison sentences for earlier committed offences of malicious wounding. It involved the offender stabbing Mr Harris three times. It caused Mr Harris to suffer three stab wounds to his chest, two in the middle of it and one in the pit of his right arm. It resulted in Mr Harris spending three days in a hospital. The stab wound to Mr Harris’ armpit may have left him with permanent nerve damage.

17 However, notwithstanding the objective seriousness of the offence, it must not be overlooked that it was committed by an offender who was well affected by intoxicating liquor, that, although a knife was used by the offender, it was unplanned, being committed without much thought for what was being done or the consequences of what might be done, that is was of short duration and that, perhaps as a result of good luck rather than good management, it did not cause any life threatening injury to Mr Harris.

18 After having committed the offence, the offender told his father that he had stabbed Mr Harris and asked his father to assist him. This shows that the offender had realised what he had done and that, to some extent, he was remorseful for what he had done. The offender’s guilty plea to the subject offence also shows his remorse for what he did.

19 In determining an appropriate sentence to impose upon the offender for the offence, to which he has pleaded guilty, I must recognise the purposes of sentencing stated in s 3A of the Crimes (Sentencing Procedure) Act, I must take into account such of the aggravating factors referred to in s 21A subs (2) of that Act as are present and such of the mitigating factors referred to in subs (3) of that section as are present and in any other relevant factor.

20 I consider that, having regard to what I have said about the offence and the offender, the only aggravating factor is that lettered (c) in subs (2) of s 21A of the Crimes (Sentencing Procedure) Act and that the mitigating factors are those lettered (a), (b), (i) and (k) in subs 3 of the section.

21 One factor not mentioned in s 21A of the Crimes (Sentencing Procedure) Act is deterrence. I consider that both personal and general deterrence are important. In view of the offender’s criminal record, he must be reminded loudly and clearly and, I suspect, yet again, that repeat offending will not be tolerated. Others who may think of using a knife, whatever be the circumstances, must be deterred from doing so.

22 Another factor not mentioned in s 21A of the Crimes (Sentencing Procedure) Act is the concurrent jurisdiction of the Local Court. However, although the offender’s counsel submitted, relying upon Crombie 1999 NSWCCA 297, that I should take into account in the offender’s favour the concurrent jurisdiction of the Local Court, I consider that, in view of what was said by Latham J in Cage 2006 NSWCCA 304, I should disregard the fact that the offender could have been dealt with in the Local Court had the Director of Public Prosecutions consented to that being done.

23 As to the prospects for the offender’s rehabilitation and the likelihood of his not re-offending, the evidence is silent. However, the offender’s past does not instil me with confidence that he will be rehabilitated or that he will not re-offend.

24 What, then, having regard to what I have said about the offence and the offender, is an appropriate sentence to impose upon the offender for the offence?

25 I have determined, balancing the purposes of sentencing, the objective seriousness of the offence, the subjective features of the offender, the aggravating and mitigating factors, to all of which I have referred, that the starting point is imprisonment for five years. I reduce the period of five years by 25 percent, that is, by one year, three months, to three years nine months on account of the offender’s guilty plea.

26 Apportionment of a sentence of imprisonment for three years nine months into a non-parole period and a parole period would, in the absence of a special circumstance, produce a non-parole period of two years nine months twenty-one days and a non-parole period of eleven months, seven days.

27 Although I am hesitant, I accept the offender’s counsel’s submission that the offender needs to be supervised by the Probation and Parole Service for longer than one year to assist his return to living in the community. I find this to be a special circumstance.

28 I have determined to fix a non-parole period of two years three months and a parole period of one year six months.

29 Accordingly, Michael Patrick Hudson, for the offence of malicious wounding, to which you have pleaded that you are guilty, you are convicted. I sentence you to imprisonment for three years nine months. I fix a non-parole period of two years three months, from 26 December 2005 to 25 March 2008, on which date you are to be eligible to be released on parole, and a parole period of one year six months, from 26 March 2008 to 25 September 2009. I order that you be subject to supervision by the New South Wales Probation and Parole Service whilst on parole during the parole period.

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