R v Phillip (a pseudonym)

[2019] NSWDC 448

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Phillip (a pseudonym) [2019] NSWDC 448
Hearing dates:	12 July and 9 August 2019
Decision date:	12 August 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 8 years, with non-parole period of 4 years for the offence of wounding with intent to cause grievous bodily harm; and imprisonment for 3 weeks for the offence of common assault.
Catchwords:	CRIME - SENTENCE - wounding with intent to cause grievous bodily harm - common assault - special circumstances to vary the non-parole period to the head sentence - totally concurrent sentences.
Legislation Cited:	Crimes Act (NSW) 1900 ss 33(1)(a) and 61; Children (Criminal Proceedings) Act (NSW) 1987 s6
Category:	Sentence
Parties:	Regina (Crown) Phillip (a pseudonym) (young person)
Representation:	Mr Ng (ODPP Parramatta) Ms Carroll (for the young person)
File Number(s):	2017/332302
Publication restriction:	Non publication order of the name of the offender or the young person Ed (a pseudonym), or anything that might directly or directly identify either of them.

​JUDGMENT

1. Phillip, you appear for sentence today in relation to two offences. 

2. First, the offence of wounding a person with intent to cause grievous bodily harm. This involves a contravention of s 33(1)(a) of the Crimes Act.  The maximum penalty for that offence is 25 years imprisonment.  Because you were a juvenile at the time you committed the offence, the standard non‑parole period is not engaged.  I note that that offence is a serious child indictable offence. 

3. Secondly, the offence of common assault. This involves a contravention of s 61 of the Crimes Act. The maximum penalty for that offences is 2 years imprisonment.

4. The facts surrounding the offences are contained in an agreed statement of facts. To the extent that material has been advanced in the sentence hearing inconsistent with the agreed facts, that material will be disregarded. 

5. There is, however, one aspect of the departure from the agreed facts to which I shall return later in the remarks. 

6. Slightly recast by me as to style, but not substance, the facts surrounding your offending are as follows.

7. As at October 2017 you were 17 years of age, approaching 18. 

8. At a date not precisely identified in the material, you assaulted a 14 year old boy.  That boy, Ed (a pseudonym) was the brother of Jillian - and Jillian’s boyfriend was John.  John knew that you had assaulted his girlfriend’s younger brother. 

9. On 2 November 2017, John, Jillian and one of John’s friends (Nick) were at a Sydney suburban shopping centre. 

10. As they were walking through the shops, Jillian recognised you. She said to John: “That is Phillip” - from which I have inferred that, before that moment, John did not know you. 

11. Once you were pointed out to John, he remembered what you had done to Jillian’s younger brother and he verbally confronted you.  An exchange passed between you and John. John yelled at you: “Why the fuck did you jump Ed?”  Your response is illuminating:  “The little cunt talks shit so I bashed him.”  John then said to you, “Why did you bash him, he’s only 14?” 

12. You then immediately went into aggression mode. You put your hands up in a fighting stance and challenged John to a fight.  You admitted in the witness box last Friday that, in this exchange, it was you who was the aggressor.  You "invited" John to go outside to engage in the fight.  He suggested it be done there and then. But a fight did not break out, - instead John and Jillian just walked off.

13. Shortly thereafter Jillian received a phone call from a friend of hers, Georgia.  Georgia informed Jillian that you were out the front of the shopping centre looking for Ed - the fourteen year old boy whom you had bashed some days beforehand.  It turns out that Ed had left the shopping centre before you could find him.

14. At around this time Jillian, knowing that her brother had gone, decided to leave the shopping centre complex. 

15. Jillian and John were walking in the forecourt away from the shopping centre complex towards the taxi rank.  You, having armed yourself with a yellow wet floor sign, ran from behind them, and you threw that sign at John. 

16. Even before the sign hit the ground, and in the same motion as you threw that sign, you reached into your pants and pulled out a knife which you had bought earlier that day.  You then ran towards John and you stabbed him in the left chest. 

17. John had done nothing to provoke either the throwing of the sign or the stabbing. To the extent that you have told the authors of the Juvenile Justice Report and the psychologist’s report that you felt threatened by John and his friends,  I reject that as being inconsistent with the agreed facts - and, in any event, is not proved on the balance of probabilities.  On Friday I rejected a contention made on your behalf on instructions that John was armed with a screwdriver.  I found that you had not proved that on the balance of probabilities. And, in any event, even if John had had a screwdriver, I am not satisfied that that had any relevance in connection with your cowardly and unprovoked throwing of the sign and your immediately presenting the large knife from your pants.

18. You stabbed John once to the left chest with this knife that was 24 centimetres long. Having done so, you ran from the scene. 

19. John was taken to the Westmead Hospital where he almost died.  He remained in hospital for two months and underwent very serious treatment. 

20. As I have said, your attack on John was unprovoked and cowardly and was done by a  person who had only days before bashed a 14 year old boy. 

21. John has provided the Court with a victim impact statement.  You have read it; you know what it says.  You know that his whole life has been substantially diminished by what you did.  You know the psychological damage, as well as the physical damage, you have done to him.  You know that the psychological damage you did to him has resulted in him trying, on multiple occasions, to take his own life. And you know that, apart from those two months that he initially spent in hospital, he has had to go back multiple times to deal with the physical consequences of what you did.

22. In terms of its objective seriousness for an offence of its kind, the wound a person with intent to cause grievous bodily harm offence is slightly above a mid-range offence.  The common assault offence is towards but, not at, the bottom of the range for an offence of its kind.

23. As I have said, you were almost 18 years of age when you committed these offences. 

24. Until you were 12 years of age, you lived as a happy young child.  You were brought up in a loving and caring family. 

25. When you were 12, your older brother died from consuming illegal drugs and your parents deeply grieved his loss, as did you.

26. But following your brother’s death, you began to unravel: you began drinking alcohol; you began consuming cannabis; and you began hanging out with undesirable influences. 

27. Two years after your brother’s death (when you were 14) you yourself were stabbed.  The circumstances in which you came to be stabbed by an apparent stranger with a screwdriver are not before me. But, suffice to say, you were seriously injured. You were in hospital for 3 days. Your already precarious mental condition further deteriorated following that traumatic experience such that, amongst other things, you were expelled from school before completing Year 8.

28. Your use of alcohol and illegal drugs only increased after the stabbing experience.  Perhaps it was a form of self-medication.

29. You completed a carpentry apprenticeship when you were 15. But that apprenticeship came to an end after a short period of time.  You worked as a plumber’s assistant for one of your brothers (also for a short period of time); and then you worked as a bricklayer (again for a short period of time.).  More likely than not, your continuous and excessive use of alcohol and illegal drugs had something to do with your unhappy work history.

30. Surprisingly with that background, you have no meaningful criminal history. You are therefore entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. 

31. You were arrested in relation to the wounding offence on 2 November 2017 and you have been continuously in custody since that date. 

32. On 21 September 2018 you were committed for trial to the District Court.  A few days later, on 27 September 2018, a trial date was in fact fixed for 13 May 2018.  Approximately two months before the trial date (on 7 March 2019) you entered a plea of guilty to the wounding offence.  You had, at a much earlier time, entered a plea of guilty in the Childrens Court to the common assault offence. 

33. Because of the lateness of the plea of guilty to the wounding offence there will be a 10% discount on the sentence to that offence.  Because of the early plea in relation to the common assault offence there will be a 25% discount.

34. There is a qualification to the 10% discount for the wounding offence. When you entered your plea of guilty, either that day or shortly after, the parties placed before the Court what I described as agreed facts.  Regrettably, in your situation, there was, in fact, a reservation to those agreed facts which had not been communicated to the Crown.  Accordingly, when the sentence hearing matter first came before me on 12 July this year then, and only then, was it revealed by your legal advisors that, contrary to what was contained in the agreed facts, you wished to agitate something that was inconsistent with those facts, namely, that you had produced the knife and attacked John because you had seen him armed with screwdrivers. Your attack was therefore an excessive pre‑emptive strike. The consequence was that the sentence hearing on 12 July 2019 was necessarily adjourned after an hour and a half and a contested facts hearing was conducted last Friday. In that contested facts hearing you were effectively unsuccessful as I have already indicated. 

35. The Supreme Court has made it clear that the manner in which a sentence hearing is conducted can result in the reduction of the percentage which might otherwise apply for a plea of guilty (see for example R v AB [2011] NSWCCA 229).

36. I have given serious consideration, Phillip, to reducing the 10% discount because of the manner in which you (through your legal advisors) conducted this sentence hearing. But, as an act of leniency because of your age - and for that reason alone - I have decided not to further reduce the discount.  If you were an adult, that would not have happened.

37. I am not persuaded on the balance of probabilities that you are genuinely remorseful for what you have done.

38. Remorse is an important factor in assessing a person’s prospects of rehabilitation. In part I have come to that conclusion by reference to the manner in which the sentence hearing was conducted.  Another relevant factor is how a person conducts himself on remand. In your case, you have been the source of numerous misconduct charges whilst you have been in custody.

39. I am also not sure that you have been full and frank with either the author of the sentencing assessment report or the psychologist's report.  Neither of those authors seems to know that you were the aggressor in that shopping centre complex that morning.  Neither of the authors seems to know that it was you that pursued John. Neither of the authors seems to know that it was you who assaulted a 14 year old boy in the days before the encounter at the shopping centre.  Curiously, the author of the sentencing assessment report refers to that incident in this way: “Phillip advised that he had some community issues with a friend of the victim in the days preceding the offences taking place".  I find it an odd expression to say that the bashing of a 14 year old boy could be described as a "community issue".

40. The author of the psychologist’s report obtained on your own behalf concludes that you are a moderate to high risk of re‑offending.

41.  As opposed to these bleak considerations, you have the support and love of your parents who have been in Court on each occasion that you have been in front of me. You have the support of your brother who is able to provide you with employment when you are released.

42. Overall Phillip, my assessment of your prospects of rehabilitation are that they are fair, at best. 

43. No sentence other than a period of imprisonment for either offence is appropriate and each sentence will be backdated to the date that you were arrested. 

44. Although you are to be sentenced in accordance with law because the wounding offence was a serious child indictable offence, the considerations of s 6 of the Children (Criminal Proceedings) Act are not irrelevant. Because of that fact, and the psychological conditions from which you suffered as a consequence of the loss of your brother and your own wounding, you are not an appropriate vehicle for the full application of general deterrence. But specific deterrence and a need to encourage your rehabilitation are fully engaged.

45. If you had been an adult, without any psychological or psychiatric issues, I would have regarded the appropriate sentence for what you did as being in the range of 15 to 16 years. But because of your youth, and because of the psychiatric conditions to which I have referred, I regard an appropriate sentence for the wounding is 9 years imprisonment before the discount of 10%.  With the discount of 10%, the term of the sentence is 8 years imprisonment. 

46. I have not been persuaded that s 19 of the Children (Criminal Proceedings) Act has been engaged and therefore I do not make a finding of special circumstances justifying your continued detention in a juvenile facility. 

47. However, because of your age; because this is your first time in custody; because your prospects of rehabilitation would be enhanced by a longer period on parole; and because of your psychological condition, I find special circumstances to vary the ratio of the head sentence to the non‑parole period.

48. Therefore, in relation to the wounding offence, I sentence you to a non‑parole period of 4 years imprisonment to date from 2 November 2017 and which will expire on 1 November 2021. 

49. I fix a balance of four years to date from 2 November 2021 and which will expire on 1 November 2025. 

50. Whether or not Phillip you are admitted to parole will be a matter for the Parole Authority. If you continue with the misconduct, and the aggression, and the fighting which you have engaged in in Juvenile Justice, those matters would not help you in terms of obtaining parole.

51. Insofar as the common assault is concerned, before the discount of 25%, I would have sentenced you to a term of imprisonment of one month.  Because of the discount of 25%, that term of imprisonment was a 3 weeks fixed term that commenced on 2 November 2017 and which expired on 22 November 2017. 

52. You will now go with the officers thank you.

Amendments

18 September 2019 - Catchwords added: "CRIME - SENTENCE - wounding with intent to cause grievous bodily harm - common assault - special circumstances to vary the non-parole period to the head sentence - totally concurrent sentences."

Decision last updated: 18 September 2019