R v Misdale

[2019] NSWDC 858

District Court

New South Wales

Medium Neutral Citation:

R v Misdale [2019] NSWDC 858

Hearing dates:

16 December 2019

Date of orders:

16 December 2019

Decision date:

16 December 2019

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Aggregate sentence 7 years 6 months NPP 4 years 6 months

Catchwords:

CRIME. SENTENCE.

 

3 Offences:
Wound with intent to cause GBH
Assault causing ABH
Reckless wounding

 

2 Form 1 offences:
Common assault
Intimidation

  Pleas of guilty – 30 year old male – Long history of alcohol fuelled violence – All but one offence (reckless wounding) were domestic violence offences – Other victim a male friend knocked unconscious in a cowardly attack – Need for treatment and supervision.

Legislation Cited:

Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 19860

Category:

Sentence

Parties:

Jack Misdale – Offender
Regina – Crown

Representation:

Counsel:
K. Prince – Crown
D. Provera – Offender

  Solicitors:
M. O’Connell – Crown
M. Heffernan – Offender

File Number(s):

2019/00029589

Publication restriction:

Nil.

Judgement

1. HIS HONOUR: Jack Misdale stands for sentence as a consequence of pleading guilty to three charges. The offender also asks me to take into account two matters on a Form 1. Originally, the offender was charged with 15 different offences. They can be found in the certificate under s 66(1) of the Criminal Procedure Act1986 which forms part of exhibit 1.

2. The offender was born in July 1988. At the time of the offences now in question he was 30 years old. He is now 31 years old. At the time of the offences now in question, Ms Sarah Johnston was aged 32 years. I shall refer to her as the complainant. Another victim of one of the offender’s crimes was Mr Andrew McClintock. At the time that he was seriously assaulted he was 37 years old: in fact, the time of the assault was his 37th birthday. The offender and the complainant met in early 2017. They formed an intimate relationship which ended in October 2017. However, in October 2018 they recommenced their relationship.

Facts

3. At about noon on 11 January 2019, the complainant was at the offender’s residence which was a studio granny flat behind his parent’s house at 11 George Street, Avalon Beach. The complainant was sitting on the bed with the offender who was standing nearby. For no apparent reason, the offender lunged at her grabbing her shoulders and pushing her back onto the bed. The complainant started to cry, stood up and walked out of the granny flat. To leave the offender’s parent’s property she needed to walk through a garage which was attached to the house. As the complainant was going through the garage the offender went through his parent’s house and arrived at the garage exit before the complainant did. The offender then chased the complainant around a car parked in the garage. The offender eventually grabbed hold of the complainant and pinned her against the wall of the garage holding her by the hair. The offender then began punching the wall above the complainant’s head. Hearing noise, the offender’s parents intervened. The offender’s father told his son to stop what he was doing as he was hurting the complainant. The complainant then ran to her car which was parked across the road in an undercover car park.

4. There was then further interaction between the complainant and the offender in the car park. Later the offender calmed down and entered his vehicle and the complainant did so too. They then went to a friend’s house in Mona Vale where they stayed the night. The interaction between the complainant and the offender in the garage is the subject of an allegation of common assault, which the offender asks me to take into account on a Form 1 for an offence that occurred on the following day.

5. On the following morning, the offender, the complainant and their friends played with a Frisbee and football in the backyard of the Mona Vale residence of the friends. At about 10am, the offender, the complainant and a male friend returned to the offender’s home for a swim in the family swimming pool. On the way to the offender’s residence, they purchased cider. At about 2.30pm the friend left.

6. At about 3.30pm the complainant and the offender were sitting on the offender’s bed. Again, for no apparent reason, the offender started to punch the victim in the head using a lot of force. The offender struck the victim between four and six times on both sides of her head. The complainant was in shock and fell backwards onto her back. From that position, she kicked towards the offender in an attempt to stop his assault upon her. The offender took a step back. The complainant pleaded with the offender to stop what he was doing but the offender appeared to be extremely angry. The offender then grabbed the victim by her throat with both hands and began to throttle her. That action went on for about one minute. The complainant was scared and feared she might be suffocated. She could not breathe properly, felt faint and started to lose consciousness. However, she managed to break free from the offender. When she did so, she was positioned across the bed facing the floor with her upper torso off the bed and the rest of her body on the bed. The offender then struck the victim on the back of her head four times with great force causing the victim to lose consciousness.

7. When the victim regained consciousness she was lying on her back on the bed. She was covered in blood and unable to move her neck. She started to cry and ask if she would be okay. The offender handed the complainant a shirt to staunch the bleeding. He said to her, “You’re not okay. Put this on your face.” The complainant then asked the offender to call an ambulance. He refused to do so but volunteered to take her to hospital himself. As the complainant tried to rise from the bed, she saw blood spattered on the bedroom walls. She felt sick and scared about what the offender did to her while she was unconscious.

8. The offender drove the victim to the Mona Vale Hospital where they were informed that they had to go to the new Northern Beaches Hospital at Frenchs Forest. At that institution they entered the emergency department. Due to embarrassment, the complainant shielded her face by putting it against the offender. She then began to hyperventilate, was placed in a wheelchair and rushed to a consultation room with the offender. While the offender was sitting next to her, the hospital staff asked the complainant what had occurred. Feeling scared and intimidated by the offender’s presence, the complainant lied and said she had been attacked by a stranger in a park and then ran to the offender’s house for help.

9. When examined by doctors there was found to be a significant swelling and bruising in the area of the complainant’s right eye. There was a 3 centimetre laceration of her right eyebrow which had pierced both the epidermis and the dermis and required four stitches for closure. Also found was a haematoma or bruise at the back of the head. The complainant also complained of tenderness around the right side of her jaw, over her cervical spine and over her chest wall.

10. For this offence the offender was charged with wounding with intent to cause grievous bodily harm. That is an offence contrary to s 33(1)(a) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment. Parliament has prescribed a standard non-parole period of seven years.

11. At some stage the offender left the hospital to go to the complainant’s residence to collect clean clothes for her. When he returned to the emergency department at the Northern Beaches Hospital, he whispered in the victim’s ear “If I knew you had a picture of Dalton in our wallet I would not have stopped”. The victim felt very scared when she was told that. Later that day the victim was discharged from the hospital. The next week she was unable to move or wash herself and stayed with the offender who looked after her.

12. The whispering incident in the emergency room at the hospital is the subject of a charge of intimidation contrary to the provisions of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and carries a maximum penalty of five years imprisonment and/or a fine of 50 penalty units. The offender also asked me to take that offence into account on a Form 1 for the offence contrary to s 33(1)(a).

13. The next series of offences occurred on 28 January 2019. At about 2pm on that day the victim and the complainant went to the home of Mr Andrew McClintock where they consumed a number of alcoholic beverages. About 5pm the three went to the Avalon Bowling Club where they joined a number of other friends in order to celebrate Mr McClintock’s 37th birthday. At about 7.40pm a gentleman who was a member of the group bought the complainant a drink. That action infuriated the offender. The offender and the complainant were sitting in the outside area of the bowling club at the time. The offender started to yell at the complainant and picked up a plastic chair. The offender raised the chair above his head and using both of his hands threw the chair at the victim who raised her arms to stop the chair from hitting her in the face. The chair struck the complainant on the left elbow causing immediate pain and a small abrasion.

14. That is an assault occasioning actual bodily harm, an offence contrary to s 59(1) of the Crimes Act 1900 and carries a maximum penalty of five years imprisonment.

15. The complainant ran from the group and sought refuge in the ladies’ toilet and also assistance from the bowling club manager. McClintock and another male in the group immediately stood up to try to calm the offender down. McClintock walked into the carpark with the offender and tried to convince him to have something to eat. The offender then said to McClintock “I’m not going to smash you because it’s your birthday”. A promise he didn’t keep.

16. The offender then left the carpark appearing to be trying to find the complainant. McClintock then left the bowling club to look for some friends. While in Simmons Lane, which is a few streets away from the bowling club, he saw the complainant hiding behind a table. The complainant told McClintock that she was going to call the police.

17. McClintock left the complainant and started to walk along Avalon Parade. There he saw the offender marching around with his chest puffed out and his fists clenched. McClintock started to walk home on Avalon Parade. The offender then ran at McClintock from behind, grabbed him and threw him to the ground. The offender put his knee on McClintock’s chest and punched McClintock about six times to the head. Initially McClintock was seeking to cover his head with his arms but at some point lost consciousness. At no point did McClintock fight back.

18. As McClintock lay motionless, unconscious, the offender stood up and took a couple of steps backwards before kicking McClintock in the head. Not only is that act seriously criminal, it is also cowardly. The offender then walked towards a nearby service station.

19. A witness approached McClintock and asked him if he was alright. McClintock was unresponsive to that lady’s enquiry and was bleeding from the nose, ear and mouth. She placed McClintock in the recovery position with the assistance of others who had witnessed the assault and went to McClintock’s aid. Police arrived about two minutes later.

20. The offender ran towards where the complainant was standing in the nearby service station. The offender started to yell at the complainant who ran towards the police and eventually hid behind them. The police officers activated their body cameras. The offender denied knowing the complainant and started to walk away from the police. Police told the offender to remain still and was restrained and cautioned, arrested and taken to the Manly Police Station where he was introduced to the custody manager and read his rights under Part 9 of LEPRA. The offender declined the opportunity to participate in an electronically recorded interview with the police, as he is entitled to do.

21. McClintock was treated by ambulance officers at the scene of the assault and taken to the Northern Beaches Hospital. He was examined by doctors and found to be suffering from a 2 centimetre wound above the left eyebrow which constituted a wound because of a breaking of the skin. The wound was closed with tissue glue. He also had swelling and bruising of his left ear. There was a haematoma on of his head which required draining and a pressure bandage to be applied. There was a superficial wound to his right ear where the skin had been broken. There was bruising and swelling to the back of McClintock’s head. He had tenderness over his anterior chest wall and the right side of his neck. There was also swelling of part of the scalp. A CT scan is said to show bruising around both eye sockets. McClintock was kept in hospital overnight and discharged the following morning and was treated with oral antibiotics for five days. There is no further evidence about Mr McClintock’s state so I assume he made a complete recovery.

22. I also assume, because of the lack of medical evidence, that the complainant made a full recovery from the injuries which he suffered in the assaults of 12 and 28 January 2019.

23. The offence committed against McClintock is one of reckless wounding contrary to s 35(4) of the Crimes Act 1900. It carries a maximum penalty of seven years imprisonment. Parliament has proscribed a standard non-parole period of three years imprisonment.

24. The offender has been in custody ever since 28 January 2019.

Seriousness

25. Learned counsel for the offender has submitted both in writing and orally that each of the three offences is in the mid-range of objective seriousness. The Crown has submitted that each of the three offences is above the mid-range of objective seriousness. However when one considers the potential range of offences of wounding with intent to cause grievous bodily harm this particular wounding is, in my view, in the mid-range of objective seriousness. Wounding could, of course, have been a stab wound, it could have been a wound which cut an artery or a nerve or interfered with the function of an organ. The wounding in this case was, and I do not mean to decry in any way the suffering experienced by the complainant, the victim, relatively superficial.

26. Likewise for the assault occasioning actual bodily harm, the actual bodily harm was relatively minor, an abrasion of the elbow. I accept, however, that having a chair raised above one’s head and anticipating that it might strike the face as it was brought down would be extremely frightening but fortunately that perceived event was obviated by the complainant’s reaction with her arms. I do not accept that this was anything other than what the offender through his counsel admitted: mid-range of objective seriousness. Likewise I accept that the offence contrary to s 33(1)(a) is in the mid-range of objective seriousness as admitted by the offender through his counsel.

27. The admission made by the offender concerning the reckless wounding of Mr McClintock, however, I do not accept. I accede to the submissions made by the Crown that this reckless wounding is above the midrange of objective seriousness, especially is that so when the offender kicked the victim of the offence, McClintock, in the head when he was laying on the ground unconscious. Furthermore, the injuries appear to be more extensive than the injuries that the complainant suffered in the attack upon her on 12 January 2019.

Criminal history

28. The offender has an extensive criminal history which indicates that he cannot be dealt with leniently. Indeed as other sources of evidence, namely the sentencing assessment report and the report of Dr Christopher Cocks tendered by the offender indicate, they show a pattern of alcohol fuelled violence over a large number of years.

29. The first offences of which I am aware occurred on 12 December 2009. The offender pleaded guilty to common assault and to assault occasioning actual bodily harm. For the latter offence he was fined $750 and ordered to enter into a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months.

30. On 7 March 2010 he committed an assault with an act of indecency. I do not have any facts about that offence. I do know that it was matter that was taken into account when the offender was sentenced for his next offence. The next offence was recklessly causing grievous bodily harm. That offence occurred on 29 May 2010. The victim of that was a male. The offender struck that male with a brown beer bottle, which smashed causing him extensive injuries. Woods DCJ sentenced the offender to imprisonment for five years and six months, and fixed a non-parole period of three years and six months commencing on 29 May 2010. The records before me indicate that the offender did serve that non parole period of three years and six months, which expired on 28 November 2013.

31. The offender’s next offences occurred on 17 May 2014. There were two offences, one of common assault and one of damaging or destroying property. The offender was sentenced to 12 months imprisonment with an eight month non-parole period, but that non-parole period was revoked and accordingly the offender spent 12 months in custody, expiring on 8 June 2015.

32. The offender next committed offences on 26 September 2015. He committed the offences of affray and damaging or destroying property. The victims of the affray were other young men. This was another episode of alcohol fuelled violence. The property damaged was the four windows of the Avalon Backpackers Hotel at Avalon. The offender was given a suspended sentence of nine months, however he was called up for a breach of that suspended sentence and was given an intensive correction order for a period of nine months.

33. On 7 September 2016 the offender pleaded guilty to an offence of assaulting a male and of offensive behaviour. For the assault the offender was given a ten month intensive corrections order and was fined for offensive behaviour.

34. On 4 October 2017 the offender committed two common assaults against Sarah Johnston, the present complainant, and was also charged with destroying or damaging property. The property which was destroyed was a glass door at the Palm Beach RSL Club, as well as a broken schooner glass. For the common assault the offender was given a 12 month gaol sentence, with nine months non parole period. The non-parole period ran from 13 December 2017 to 12 September 2018.

35. However before that sentence was imposed the offender committed a further offence on 9 October 2017. That was contravening an AVO where the person in need of protection was again Sarah Johnston. The criminality involved there was not particularly great as they were together by mutual consent. There is no suggestion of any violence or any untoward conduct, and each of the complainant and the offender believed that he or she could be in each other’s company if they wished to do so. However, for that offence the offender was sentenced to a six month period of imprisonment, which coincided with the period of imprisonment for the offences of 4 October 2017.

36. The only other relevant offence is one committed on 5 December 2018, an offence of using offensive language in or near a public place for which the offender was fined $300.

37. I omit from that list of previous offences three drink driving offences which are irrelevant as far as the present criminality is concerned, but do point in the direction the offender is having a problem with alcohol.

38. One can see therefore in the past a pattern of alcohol fuelled violence and more recently offences committed against the current complainant, Ms Sarah Johnston.

Personal circumstances

39. The offender’s personal circumstances can be found in the report of Dr Christopher Cocks who interviewed the offender via audio visual link when the offender was at the Cessnock Correctional Centre on 26 November last.

39. The offender was born at Manly Hospital. He appears to have lived all his life in the northern beachside suburbs of Sydney. He has an older brother and two younger sisters. The history obtained by Dr Cocks continues thus:

“Mr Misdale was raised within a loving and supportive family home. His father worked as a plumber and his mother took on extra casual work. He stated both of his parents worked hard and attempted to instil a strong work ethic within their children. Mr Misdale reported a good relationship with both his parents and is particularly close to his mother. Mr Misdale adamantly denied any history of physical or sexual abuse.

Mr Misdale attended primary school at Avalon Public. He attended High School at Barrenjoey through until Year 10. Mr Misdale struggled academically. He described a long history of having difficulty concentrating and focussing on tasks. He did not excel within the classroom and as such left school after Year 10. He was an active student and thoroughly enjoyed sports such as surfing, bike riding and football. On completion of Year 10, Mr Misdale worked mowing lawns. He did not report having long-term aspirations. He did not describe any motivation to enter a trade or obtain formal qualifications.”

41. The reason for this lack of direction could well be the offender’s drug and alcohol history. According to the history taken by Dr Cocks that started when the offender was 13 years old, that is shortly after he went to high school.

42. The history continues thus:

“He described an escalating use of alcohol intake over his teenage years. He initially used alcohol at social settings, but described habitual use of higher level intake that developed in his late adolescent years and into his 20s. When outside of custody, Mr Misdale stated that he would drink most days. He can drink to the extent of consuming a case of beer and a bottle of Jack Daniels over the course of 24 to 48 hours. Mr Misdale stated, “I can’t stop, I have a problem”. He stated that he drinks to experiencing blackouts and memory loss of the night prior. When not drinking, he thinks about alcohol with strong cravings to consume alcohol. Mr Misdale has not previously sought treatment for his high level alcohol abuse and dependency.

Alongside Mr Misdale’s alcohol dependence, he reported problematic illicit substance abuse. Mr Misdale stated that when intoxicated with alcohol he abuses cocaine. Mr Misdale estimated that he uses up to 3 grams of cocaine when intoxicated with alcohol. He first used cocaine at the age of 17. His use increased as he developed tolerance to the drug. He only uses cocaine when drinking alcohol. He stated “I use it to black myself out, to destroy myself, to help when I feel down and depressed”. Mr Misdale states that he needs alcohol and cocaine to function in the community. He stated that it makes him feel more confident.

Mr Misdale disclosed a long history of recreational illicit substance abuse. He has used LSD, mushrooms, ecstasy, speed and methylamphetamine. Mr Misdale stated, ‘I have experimented with everything’. He stated that predominant drugs that have caused problems are that of alcohol and cocaine.”

43. Dr Cocks went on to point out that the offender also had a problematic pattern of gambling when under the influence of alcohol and cocaine. The offender described to Dr Cocks an habitual use of poker machines. The offender told the doctor that he was struggling to control his desire to gamble. Specifically he described a struggle to resist the flashing lights of poker machines and what stops him eventually gambling is running out of money.

44. One thing which comes through the medical evidence is that the offender has only had intermittent and low paying employment which must have interfered with his ability to buy alcohol and drugs and gamble. It may be that there are generalities involved in the history taken by Dr Cocks.

45. Of great significance however in a case where there is domestic violence is the offender’s personal history. Dr Cocks recorded this:

“Mr Misdale has struggled to maintain stable intimate relationships. The victim of the offences before the Court was in a relation with Mr Misdale from March 2017. He stated they met through mutual friends. He stated that the relationship was prone to verbal arguments and often became physical. Mr Misdale stated that both he and his partner, Sarah, are stubborn. He described the relationship as ‘toxic’.”

46. I think it important to note Dr Cocks’ findings recorded under mental state examination, they include this:

"He was calm, cooperative and easy to engage. There was no psycho-motor disturbances. Mr Misdale's speech was spontaneous without pressure. There was no disorder of thought form or thought content. No perceptual disturbances. Mr Misdale displayed partial insight into his issues, recognising his need for treatment and support. On bedside testing, there was no impairment in cognition."

In short when the offender was free of alcohol and drugs he could think clearly, present well, and appears to be developing insight into his needs for treatment of his drug and alcohol problem and his need for support in overcoming his addictions.

47. Completely unsurprisingly, Dr Cocks diagnosed a substance use disorder, a stimulant use disorder and a gaming use disorder. He does not indicate that there was any underlying condition that caused the offender to turn to alcohol and drugs, other than what one often encounters, youthful inquisitiveness and the desire to rebel amongst the young.

48. The Sentencing Assessment Report dated 9 December 2019 paints a very different picture. According to the Community Corrections officer the offender turned to alcohol and drugs as a form of self-medication for symptoms of anxiety. According to her he also described ongoing symptoms consistent with anxiety and depression. According to the Community Corrections officer the offender attributed his offending behaviour to a poor upbringing where violence and aggression was normalised and prevalent. According to her the offender said that he was "brainwashed" during his childhood by witnessing violent video games and also domestic violence in the family home perpetrated by his father. That is quite inconsistent with what is recorded by Dr Cocks. Considering Dr Cocks' qualifications I would have preferred his assessment to that of the Community Corrections officer.

The future

49. However one thing each of the two reports tells me is that the prognosis is a difficult one. According to the Community Corrections officer the offender has been assessed as being at a high risk of re-offending. The report says that if the Court were to make a supervised order the offender would be supervised, he would be required to report to a Community Corrections officer every week and receive home visits from the officer every four weeks. He would be assessed for suitability for domestic violence electronic monitoring. He would be referred to the Royal North Shore Hospital for individual drug and alcohol counselling. He would be referred to the EQUIPS domestic abuse program commencing at St Leonards in February 2020. He would also have interviews to ascertain intervention modules for conflict resolution, managing stress and anger, and managing cravings, and interpersonal relationships. He would also be required to attend upon a general practitioner to obtain a mental health care plan.

50. As to the future Dr Cocks said the prognosis was difficult to predict. He recommended the following treatment:

"In my opinion, Mr Misdale requires intensive drug and alcohol support as a matter of priority. In my opinion, Mr Misdale should be assessed and treated by the drug and alcohol service in the custodial environment. In my opinion, Mr Misdale would benefit from resources to help him address his alcohol and cocaine dependency in the community. Should Mr Misdale be released into the community, he will require intensive drug and alcohol treatment. This could be obtained through his local general practitioner and local community mental health team. Mr Misdale should be considered as a candidate for treatment under the care of psychologist with specific expertise in the treatment of drug and alcohol-related problems. He should also be referred to a consultant psychiatrist for review regarding the indication for medical treatments for alcohol dependency, such as acamprosate, naltrexone and disulfiram. Longer-term residential rehabilitation should be considered to obtain sustained sobriety from alcohol and any substances. Mr Misdale needs to be supported and encouraged to continue adaptive patterns of behaviour that ensure sustained abstinence from alcohol and illicit drugs."

51. It is clear to me that the offender's major problem is alcohol. In custody he abstains, behaving perfectly normally, perfectly well. He is working in the gaol system as a painter and is able to do that job in a satisfactory manner. He needs treatment for his drug and alcohol addiction and when released on parole he will need as much assistance as can be given to him by Corrective Services to maintain any resolution that he makes to be abstinent from alcohol and drugs.

52. There was mention in the sentencing assessment report that the offender in the past has not successfully completed courses offered to him, in particular for aggression and domestic abuse, essentially from lack of cooperation. However, it appears to me that requiring the offender to do those things before addressing the primary consideration, his alcohol addiction, is why that has been unsuccessful in the past.

53. The extent to which the offender can successfully undergo drug and alcohol treatment in custody is unknown to me. But of course the problem is that when released into the community, alcohol is so easily obtained that the temptation that he will face might be overwhelming. Hence, he will need as much supervision as he can and assistance as he can obtain from Community Corrections, when he returns to the community, to stay free of drugs and alcohol and turn his life around.

54. Another complication is that the offender lived, up until going to custody on 28 January this year, in a granny flat at his parents’ property at Avalon Beach, but they have now sold that property and moved elsewhere and that accommodation will no longer be available to him. Nevertheless, the offender still has the support of his parents and perhaps he can move to live with them to wherever they may have moved.

55. The offender needs a lot of assistance and needs assistance, for example in training, so that he can enter the workforce and instead of wasting away idle time by drinking he can spend the time working, earning income, staying off alcohol and drugs and getting on with his life in the hope of meeting a suitable partner to spend the rest of his life with, something I am sure that he would want.

Consideration

56. However, the sentencing process is not only about rehabilitation of the offender, albeit that assists both the offender and the community. The purposes of sentencing are many and denunciation is an important principle, as is deterrence both of the offender and of others who might want to practise violence, in particular domestic violence.

57. I have carefully considered the submissions put to me by counsel and the statistics available from the Judicial Commission, copies of which have been made both by the Crown and by the offender. In approaching the sentencing exercise I have to bear in mind both the objective seriousness of the offences, the purposes of sentencing, the subjective features of the offender and the prospects for the future. The prospects for the future, the concept of rehabilitation, the concept of not re offending are very important but it is impossible to tell at this stage. It is the offender who must make the decision to give up the grog. If he does so, he can live a relatively normal life. If he does not, he will end up spending most of the rest of his life in gaol.

58. The evidence suggests that over the last ten years the offender has spent about seven years in custody. It is somewhat less than that but only by a relatively small margin. The offender is at risk of becoming institutionalised and that must stop, otherwise the offender might as well just sign himself into gaol for the rest of his life.

59. For the offence of 12 January 2019 of wounding Sarah Johnston with intent to cause her grievous bodily harm, I start the sentencing exercise with a head sentence of seven years imprisonment. I discount that by 25% as agreed by the Crown and the offender because of the utilitarian value of his plea of guilty. That reduces the head sentence to five years and three months imprisonment. That indicates, using the statutory ratio, a non-parole period of three years and 11 months.

60. For the offence of assault occasioning actual bodily harm of Sarah Johnston committed on 28 January 2019, I believe a fixed term of imprisonment of six months is the appropriate penalty.

61. For the offence of recklessly wounding Andrew McClintock on 28 January 2019, I start the sentencing exercise with a head sentence of five years imprisonment. I discount that by 25% and that head sentence becomes three years and nine months. Applying the statutory ratio, that indicates a non-parole period of two years and nine months.

62. I intend to impose an aggregate sentence. If I totally accumulate the head sentences I come to a head sentence of nine years and six months. If I totally accumulate the non-parole periods I come to a total non parole period of seven years and two months. Each of those, of course, includes a six month fixed period.

63. I have come to the view that the total aggregate head sentence should be seven years and six months imprisonment and the non-parole period should be four years and six months which would allow the offender to have the benefit of Community Corrections for a period of three years.

64. In other words, based on what I have said already about the offender’s need for treatment and support for his drug and alcohol addiction, he will need as much support as possible on release from prison to lead a lawful life. That supports a finding of special circumstances and a three year period on parole will maximise the opportunity that the offender has.

65. Having said that, however, I should point out to the offender that if he does not try to stay off drugs and alcohol when he is released on this occasion, what will happen is what has happened in the past. His parole will be revoked and he will spend the rest of the period in gaol. No one wants that. It is not in the interests of the State or the offender.

66. Jack Misdale, on each of the three charges to which you pleaded guilty you are convicted. I sentence you to imprisonment. I set a non-parole period of four years and six months, commencing on 28 January 2019 and expiring on 27 July 2023. I impose a further period of imprisonment of three years to commence upon the expiration of the non-parole period and expiring on 27 July 2026. The sentence is therefore seven years and six months, comprising the non-parole period and the balance of sentence. I have found special circumstances, you are eligible to be considered for release to parole at the expiration of the non-parole period. I take into account the matters on the Form 1 in respect of the offence contrary to s 33(1)(a) of the Crimes Act 1900.

67. The indicative sentences are: For the offence against s 33(1)(a) five years and three months with a non-parole period of three years and 11 months; for the offence under s 59(1) six months fixed term; and for the offence under s 35(4) three years and nine months with a non-parole period of two years and nine months.

**********

Decision last updated: 23 March 2020