R v Pound - [2013] NSWDC 336

District Court

New South Wales

Medium Neutral Citation: R v Pound [2013] NSWDC 336
Hearing dates: 1 & 6/11/2013
Decision date: 13 November 2013
Jurisdiction: Criminal
Before: Judge Norrish QC
Decision:
Total sentence of 7 years 6 months imprisonment with a non-parole period of 5 years.

Catchwords: CRIMINAL – Sentence, inflict grievous bodily harm, carry a firearm with disregard for safety, early plea, standard non-parole period, health of prisoner, objective seriousness, matters on a Form 1.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Cases Cited: Bailey v The Director of Public Prosecutions [1988] HCA 19
R v Engert (1995) 84 A Crim R 67
Markarian v The Queen (2005) 228 CLR 537
Muldrock v The Queen (2011) 244 CLR 120
Pearce v The Queen (1998) 194 CLR 610
R v Westerman [2004] NSWCCA 161
R v Badanjak [2004] NSWCCA 395
R v Vachalec (1981) 1 NSWLR 351
The Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
The Queen v Smith [1987] 44 SASR 587
R v Thomson and Houlton [2000] NSWCCA 309
Veen (No 2) v The Queen (1988) 164 CLR 465
R v Channells (Court of Criminal Appeal (NSW), 30 September 1997, unrep)
Category: Sentence
Parties: Director of Public Prosecutions
Andrew John Pound - Offender
Representation: Solicitors:
Director of Public Prosecutions
Saba El-Hanania Lawyers - Offender

File Number(s): 2012/334852

SENTENCE

HIS HONOUR: Andrew John Pound appears today for sentence in relation to two offences, to which he pleaded guilty at the Local Court and continued his pleas of guilty in this Court.
The offences to which he pleaded guilty at the Local Court and in this Court are, firstly, that he, on 20 October 2012 at Newtown did recklessly inflict grievous bodily harm upon Daniel Marino. That offence is referred to in the Court Attendance Notice as a Sequence 1 offence and will be shortly referred to from time to time as the “recklessly inflict grievous bodily harm” offence.
The second offence to which he pleaded guilty is an offence of carrying a firearm, to wit a small calibre handgun, with disregard for the safety of himself and Daniel Marino at 79/1-17 Alice Street, Newtown. This offence is Sequence 2 of the Court Attendance Notices.
The offence of recklessly inflict grievous bodily harm contrary to s 35(2) Crimes Act 1900 carries a maximum penalty of 10 years imprisonment. It has a standard non-parole period of four years imprisonment.
The offence of carrying a firearm with disregard for safety contrary to s 93G(1)(c) Crimes Act carries a maximum penalty of 10 years imprisonment. I am informed by the Crown it has no standard non-parole period.
I am also required to take into account the offence on a Form 1 of cultivating a prohibited plant on 20 October 2012 at Newtown, the prohibited plant being cannabis. That matter on the Form 1 involves an offence brought contrary to s 23(1)(a) Drug Misuse and Trafficking Act 1985. I will refer to that in the Facts and in the context of dealing with the treatment of matters on a Form 1.
The offences, as revealed in the particulars in the Court Attendance Notices, were committed on 20 October 2012 in the early hours of the morning. The offender was arrested on 26 October 2012 and has been in custody since that date. Obviously the time spent in custody will be taken into account.
There was a statement of facts tendered to the Court and other material annexed to it which I will briefly summarise. As it transpired in the context of the evidence given by the offender it would appear to be in effect, if not so stated, an agreed statement of facts.
On 19 and 20 October 2012 the offender lived alone in a flat at Alice Street, Newtown. He was at the time not the holder of a New South Wales firearms licence in any capacity. The father of the victim of the offence of recklessly inflict grievous bodily harm, Daniel Marino, lived in the same block of flats but on a lower level. On Friday night, 19 October 2012, the victim and three associates of him, named in the facts as Jason Galea, Ben McCarthy and Adam Goncalves, went to Kings Cross where they consumed alcohol.
It is said in the facts that Goncalves and Galea each digested an ecstasy tablet, that is an MDMA tablet, at around 10pm. At about 3am Mr Marino, the victim of the principal offence and his group left Kings Cross and returned, intending to reside that night at the father’s address at Newtown. It was expected that he would not be home.
As it transpired the victim’s father was home and the group decided to leave. The offender was awake. He had met the victim before in the context of seeing him around the apartments visiting his father and the offender invited the victim and his friends up to his unit.
They all sat down in lounge seats and when Mr McCarthy was in the toilet the offender produced a .22 calibre Harrington & Richardson seven shot revolver. He began to spin the handgun around in his finger, using what is suspected to be the trigger guard. This appears not to have been done to threaten the group.
After a brief period the offender stopped spinning the firearm and he put the gun in his pants. The group, including the accused, sat down in various lounge chairs. Mr Marino at some point sat on the lounge occupied by the accused. Mr Pound told him to move.
The two began to taunt one another in a jovial fashion. At this point Mr Pound produced the gun and held it with his finger on the trigger. The victim said, “Don’t point that thing at me” and he tapped the barrel with his two fingers.
At this point the firearm discharged with the projectile striking the victim in the left eye and continuing its path until it stopped behind the right eye.
The facts state:

“…. It is not alleged that the accused deliberately shot the victim. Panicking, the entire group, along with the offender, left the address and made their way outside the main building entrance. Outside the unit complex the accused, using his own mobile phone, contacted triple-0 at 3.44am and requested an ambulance indicating, “I’ve shot my friend in the eye with a gun.”
Awoken by the commotion, the father of the victim left his unit and joined the group. The victim’s friends identified the offender as having shot the victim.”

The victim was walked eventually downstairs by the group, who had obviously returned, and taken to the waiting ambulance. He was later conveyed to Royal Prince Alfred Hospital. The facts state that his injuries reveal a loss of sight in his left eye and partial blindness in his right eye. The firearm’s projectile entered Mr Marino slightly above his left eye, leaving parts of the projectile behind both eyes as it fragmented.
A police search of the crime scene revealed blood spatter on the far side of the lounge room on the coffee table, lounge, floor and window. Other blood spatter was located on items of clothing. No firearm or firearm related items were located inside or in the vicinity of the flat.
Also located during this search were the six cannabis plants which were being cultivated by the prisoner in a spare bedroom, and are concerned with the matter on the Form 1. There was fluorescent lighting, potting, watering, concealment and other aids to cultivation.
The offender resided in the address alone and his possession of the cannabis is not in dispute. Police continued to investigate the location of the weapon. The offender told them that Goncalves had the gun, although he initially denied knowing where the gun was.
Goncalves subsequently informed the police that he had possession of the pistol which he produced to them. He provided an additional statement that day alleging that after the shooting, Pound dropped the gun, Goncalves then picked up the gun, ran down the stairs and out of the unit complex. He buried the firearm underneath a pile of leaves, obviously in a panic.
The prisoner presented himself to Newtown Police on 26 October 2012, I would take from that that his identity at that point had been well established. In fact, I take from the facts that he had already spoken to the police in relation to the matter.
The offender was placed under arrest and taken into custody, he declined to participate in an electronic interview and he was charged with the matters before the Court.
I have two expert certificates relating to the injuries suffered by the victim including details of operative treatment, noting the victim was operated on by medical staff on 20 October 2012 and discharged from hospital on 26 October 2012.
The permanent injuries suffered by the victim are, according to the medical report, a permanently blind left eye with related physical impairment of the eyelid and deformation of the eye with restricted eye movements. There are other comments made in relation to the extent of the impairment which probably are more relevant to a claim for civil damages.
At the time of the commission of the offence the offender, who was born on 11 November 1980, would have been, in my calculation, 31 years of age, about to turn 32. He is now 33 years of age.
His criminal history shows a number of appearances in the Children’s Court for crimes of dishonesty and other related matters, as well as other findings of guilt over a period of time between 1993 and 1999.
In 1998 and 1999 he was also found guilty in the Children’s Court of offences of intimidation, resisting a police officer, possessing an unauthorised firearm and possessing ammunition. For those offences he was dealt with in accordance with the Children (Criminal Proceedings) Act, usually with probation.
His appearances as an adult in the Local Court include a number of convictions which include possession or custody of a knife in a public place, for which he was placed on a bond in 1999, intimidation of a police officer in 2000 for which he was fined, breaking, entering and stealing and damaging property for which he was variously fined or placed on bonds, a common assault conviction in 2005 for which he was placed on a two year good behaviour bond with conditions requiring supervision to suppress or address anger management and alcohol rehabilitation and a conviction for assault occasioning actual bodily harm in 2006 for which he was sentenced to a term of imprisonment with a non-parole period of three months.
He has a conviction for driving with high range prescribed concentration of alcohol in 2007, for which he was fined and disqualified, an offence of goods in custody and possession of drugs in 2008 for which he was fined and a conviction in 2010 for being found on, entering or leaving drug premises for which he was also fined.
According to the Probation and Parole Service he also has a conviction for which he was placed on a recognisance for breaches of Commonwealth law relating to matters of dishonesty.
All of his prior convictions, as I said, were either in the Children’s Court or the Local Court. The character of the offending, however, and the period of time over which it was committed reveals, as I must conclude, that his criminal history does not entitle him to any particular leniency.
I will deal with the issue of aggravating factors under s 21A shortly.
There is a Probation and Parole Service report which deals with the previous supervision of the offender by bonds, a Commonwealth recognisance and a parole order.
When subject to supervision after a breach of Commonwealth law, making some allowance for his medical condition to which I will refer in a moment, he was found to be in that supervision inconsistent in his reporting, he continued to have drug and alcohol issues that he failed to address, and suffered fluctuating periods of depression.
It was found that he was inconsistent in his medical and mental health compliance. Whilst in custody I note he has failed three prescribed urine tests relating to the presence of prohibited drugs in his system. The Probation and Parole Service report notes that he completed his parole without any significant issues.
In relation to his background it notes that he has had a very poor education, having left school at about the age of 12 and having completed only to Year 6.
He has an employment history of short term casual positions, largely in the areas of gardening and bar work. He worked, as I understand it, in more recent years as a casual but full-time worker with the local council doing landscaping and lawn mowing work, which is work he held for about two years.
It was in these circumstances, as I understand his evidence, that he found the firearm the subject of the particular charge Sequence 2 and the firearm used in the wounding of the victim.
He has been receiving a disability support pension from about 2010 for apparently mental health issues including some delusions and in respect of a serious illness which is addressed in a report that I will refer to in a moment.
The Probation and Parole Service reflected upon issues in relation to his background including his father’s sexual abuse of his half sister, his treatment over a period of time for mood disorders, particularly anxiety and depression and his more recent prescription of antidepressants and mood stabiliser drugs which have made him feel better, as I understand it, whilst in custody.
He conceded to the Probation and Parole Service Officer that whilst at large, prior to the commission of this offence, although it is not in one sense directly connected to the offence of the recklessly inflicting grievous bodily harm, that he was “totally out of control” with heavy drinking and use of cannabis prior to his arrest.
He has a long history of alcohol and cannabis abuse, and in recent years he has used crystal methamphetamine and was doing so up until a month before his arrest. Apart from detoxifying in custody he has had no rehabilitation assistance or direction.
According to the Probation and Parole Service and in his evidence before me he accepted full responsibility for the offending behaviour and agreed with the police facts, stating amongst other things the cannabis plants were for his personal use.
It is quoted in the report that he felt “terrible” that he had caused such serious injury to the victim. The summary of the Probation and Parole Service report is that being a single male with a history of violence, alcohol and poly drug abuse, with mental health issues and anxiety, the offender is a person who, “if he is to have any chance of leading a normal, lawful life, will need to address his addictions.”
The report says he will benefit from completing a residential rehabilitation facility programme upon his release to the community. He will also benefit from a mental health assessment in the community and if necessary appropriate therapy.
He is suitable for a medium level of intervention, requiring a case plan that will address alcohol and drug abuse issues, anger management and will require random urine analysis for drug and alcohol testing. He also requires direction and assessment and counselling in relation to mental health issues.
All of these matters are of course for the Parole Authority in due course.
I have a report from an organisation known as ACON which has provided a great deal of background information in relation to a condition from which the offender suffers that I do not propose to detail publicly.
The offender has tested positive to a particular illness or condition with which ACON is very familiar in its work. This condition makes the offender susceptible to opportunistic infections such as pneumonia and cancers.
According to the report that was tendered in this matter, people with the offender’s condition can suffer a variety of health problems associated with the condition.
The author of the report notes that in the experience of ACON it believes the offender will have difficulty in accessing relevant experienced doctors and only those persons hospitalised within the Sydney metropolitan area, under the supervision of the Corrective Services, can have regular access to a relatively experienced practitioner and appropriate medication.
It is said in the report that there is success with treatment of this condition with what is described as “combination therapy” which includes medication regimes including timely and correct ingestion of medication, appropriate diet and the like.
The report notes limitations in access to medications within the prison system. It is also noted that people in custody cannot participate in clinical trial programmes for new medications and there are difficulties in custody from ACON’s experience in obtaining a carefully managed and specially balanced diet and related matters.
It is noted from the report that US studies have shown that whilst in custody psychological stress may impair the body’s immune system and psychological factors of depression, anger and fatigue often experienced in prison life have a link to the development of related illnesses.
The report also refers to cases of discrimination against prisoners by other prisoners within the confines of prison where people have the offender’s condition and there are a number of serious threats to continued health likely to exist amongst other prisoners.
The report also refers to what it describes as the offender’s “mental health issues”. The report asks the Court to consider the “humanitarian consequences” of discharging the offender into the correction system, noting the “very real likelihood that his health may deteriorate quickly with little opportunity for early intervention”.
In relation to the matters arising out of that evidence, obviously there are many ways in which the physical health of an offender may have an impact on the sentencing process.
It may have a relevance to the assessment of the objective facts, it may be a matter considered as relevant subjective circumstance, either as a mitigating factor or a matter relevant to the assessment of the appropriate non parole period.
It has long been the practice of courts to take into account circumstances that make imprisonment more burdensome for offenders, including considerations relating to the offender’s health and many of those cases to which I have impliedly referred are concerned with the same condition suffered by the offender.
One need only cite the decision of The Queen v Bailey, from the New South Wales Court of Criminal Appeal in 1988, The Queen v Smith [1987] 44 SASR 587 and of course the decision of Bailey in the High Court on a special leave application.
It is also to be borne in mind what has been said about the relevance of the health of a prisoner to be committed to custody discussed in decisions such as Vachalec (1981) 1 NSWLR 351-353 and Badanjak [2004] NSWCCA 395, particularly at [11].
Relevant factors will include the need for medical treatment in custody, particular hardships in prison, the likelihood of the offender’s reasonable needs being met whilst imprisoned.
I have had full regard to what has been said in the ACON report. The condition the offender suffers from existed at the time of the offending.
I have received no material from Justice Health to say that the offender’s condition cannot be treated to the extent that Justice Health is capable of doing so and whilst I have full regard to some of the reservations ACON has concerning the limitations of treatment within the prison I have no direct evidence from the offender, or from an independent source intimately connected with the treatment of the offender, that there are particular hardships beyond what, as I said earlier, may be reasonably considered from the ACON report.
Of course, ill health cannot be allowed to become a “licence to commit crime”, to quote from the Sentencing Bench Book, nor can offenders expect to escape punishment because of the condition of their health. It is in fact the responsibility of the Correctional Services and particularly Justice Health, under the auspices of the Department of Corrections, to provide appropriate care and treatment, a process with which the Court cannot interfere.

I am mindful that there will be some additional burden on the offender by reason of his state of health but the evidence in relation to that matter in the specific case is, to be fairly said, quite incomplete.
In relation to the material that has been presented on behalf of the offender I also have a report from Dr John Jacmon, a psychologist retained by the offender’s legal representatives. This is a very lengthy report but in summary, that report concludes, based on the psychometric testing conducted by the psychologist and other tests, and I am pleased to report it is one psychologist’s report where the psychologist actually conducted appropriate testing within his expertise, that the offender has symptoms consistent with the diagnosis of Bipolar Disorder type II, which consists of successive episodes of depression and hypermania, interspersed with periods of normality.
This is a lifetime condition for which there is no effective treatment or management according to the psychologist. It is stated that at the time surrounding the incident with which I am concerned, the offender was undergoing what could be described as a depressive episode, his functioning at the time of the incident was markedly impaired by alcohol use consistent with an assessment that he had a longstanding alcohol and cannabis dependence disorder.
The symptoms of his disorders include during the hypermanic phase restlessness, increased energy, active euphoria, poor judgment, self destructive behaviour, impulsive behaviour. In the depressive stage there is a prominent downturn in mood, loss of confidence, confused thinking and difficulties in concentration.
It was noted that alcohol abuse dependency leads to poor attention and concentration, poor abstract problem solving skills, deficiencies in memory, deficiencies in executive function and motor deficits.
Marijuana dependency impairs learning and memory cognitive functions such as judgment, coordination, ability to regulate movement, capacity to recall events and ability to shift attention from one item or issue to another. These impairments can affect a person’s judgments and reasoning.
The psychologist opines that the offending indicated markedly diminished capacity for judgment with little thought to the consequences. The psychologist said that the offender was remorseful and took full responsibility for his offending actions, deeply regretted the permanent harm he had caused.
A treatment plan is proposed in the report to try and strengthen drug and alcohol use relapse prevention skills to apply anger management skills based upon the concept of cognitive behaviour therapy, or CBT. He recommended that the offender be referred to a psychologist by his general practitioner on his release.
I need not go into the details of the treatment plan contained within the report. Those matters of course will be a matter of record and are a matter for consideration by the Parole Authority and those that will supervise him on parole.
In relation to the defence case, the offender gave evidence that he was intoxicated on the night and that the other people who came to his flat also appeared to be intoxicated.
He said that he was just at home having a few drinks. He heard people downstairs and invited them up to his place. He gave evidence that the firearm that he discharged was, as he described it, “quite rusty”.
He told me that he had found the firearm in 2007 when working down on the Cooks River near Tempe, when he was mowing lawns for the local Council. He said that he had put it away in storage and to use his words, “lost it for a while” but refound it in June 2012. He said that he had no reason for keeping the firearm. It just stayed in a toolbox until a couple of days before he brought it out to show a few friends. I take it people other than the people present on the morning of 20 October 2012.
He said to me that he did not know that it was loaded when he found it, but he did remember putting a bullet in it, maybe two days before the incident, or “something like that” but did not realise that it was still in there when he had taken it out on the night of the shooting.
He said that he had some .22 calibre bullets from about 10 years before. He could not recall having pointed the gun at people before and had only put the bullet in the gun to see whether the firearm worked. I will analysis this evidence, of course, in due course.
He said that he had consumed three to four longneck beers that night, starting at 11 o'clock, admitted to being a heavy drinker and noted his propensity for getting into trouble when in an intoxicated state and he noted also his positive test for the use of marijuana whilst in custody.
He said that when he was first locked up he was very depressed. He was not receiving treatment for his mental health programmes and had smoked pot to relieve these symptoms, but he had not smoked “pot” for about eight months.
Before going into custody he had been being treated for the condition that is the subject of comment by ACON and is receiving the same medication as was prescribed to him by Dr Rimington at RPA Hospital.
He noted and conceded that his previous attempts at rehabilitation of drug and alcohol issues had been half-hearted but then when he was released from custody on this occasion he hoped to receive counselling and do his “absolute best” to stop drinking.
He told me he was currently in the general prison population, not remanded in segregation. Although he was in an area with other “medical holds”.
His mother gave evidence of her concern for the family of the victim, the victim himself and, of course, what she described as “the heartbreak” for her son to be in this situation. She had been receiving some treatment and medication for anxiety and she would hope that the offender would reside with her on his release from custody, she lives at Constitution Hill, to the west of Sydney.
I accept that the offender’s mother supports him and will continue to support him on his release, which will be of assistance to him. She noted in cross-examination that his response to any psychiatric assistance in the past, particularly in his youth, had been “sporadic”.
In relation to his background there are a number of histories available which were adopted by the offender in the psychological report and in the Probation and Parole Service report.
The offender has variously lived in New South Wales and Queensland, as I have pointed out his father had sexually assaulted his half sister and was sentenced to a term of imprisonment, as I would understand it.
The father was described as a “violent alcoholic”. He had had no contact with his father since the revelations concerning the sexual assault but as was apparent from the evidence from his mother he had a close relationship with his mother.
As I mentioned earlier he had only completed Year 6. He did not attend high school and freely admitted, as I understand from the history, that his juvenile years were spent largely associating with what were described as criminal associates, the use of alcohol and drugs.
I note a matter that was raised by the victim’s mother in the reading of the victim impact statement. It is a matter that is reflected in the Probation and Parole Service report. It requires addressing at this point just briefly.
I am informed from source material in the reports that the offender has previously been charged with murder. This is a matter in respect of which he spent a year in custody. The matter was no-billed.
There is reference in, I believe, the psychologist’s report, that he was subsequently either re-arrested in relation to this charge or the same type of charge but was acquitted by a jury.
I cannot determine from this, for the purposes of reasonable fact finding, that the offender has a proclivity for violence, which was the suggestion, I would have understood, from the mother.
Obviously she is very distressed about the injuries suffered by her son. But for professional judges determining the facts of the cases, based upon proven events, these past events are, it is to be fairly said, irrelevant to this sentencing exercise.
It should be fairly said as far as this Court is concerned, apart from the hearsay material I have been provided, I have been provided with no other direct information about those matters.
His times in custody in relation to these other matters however, have a relevance to this case because it is said that these have exacerbated his depressive symptoms, on his release from custody and return to drugs and alcohol on each occasion.
He was in a relationship with a woman after his release from gaol in 2006 who was a heavy drinker. That was a relationship that broke up after three years and the offender continued to abuse alcohol and drugs and had been drinking heavily, as he admitted, up until the time of the commission of the offence.
In the personality assessment inventory, conducted by the psychologist, he noted a number of aspects of the offender’s functioning which showed substantial impairment, particularly impairment in his personality function, both by reason of elevated anxiety, by reason of depressive symptoms, which reflected in a loss of interest in normal activities and related matters which exhibited themselves in his frustration in his relationship with other people and him being socially isolated with few interpersonal relationships.
He was also assessed through this testing to be likely to be impulsive and emotionally labile, to feel misunderstood by others, tending to be angry and suspicious, while also being anxious and needy. He is also said to be ambivalent about his interactions with others.
His antisocial behavioural testing revealed a score that was consistent with individuals who “are likely to manifest behaviour that is reckless and potentially dangerous to themselves and all those around them”. That assessment is of course quite prescient in the context of the facts of this case.
It was noted by the psychologist that a person with his scores and a history of antisocial acts often manifest these matters in a conduct disorder during adolescence which is, as I said, reflected in the offender’s criminal history and illegal activities by him. There were high scores in relation to alcohol and drug dependency, as I have earlier pointed out.
The psychologist concluded:

“The areas of elevated scores and associated results in the personality assessment inventory suggest anxiety, depression and drug and alcohol problems. Some symptoms in the background suggest bipolar disorder and the likelihood that Mr Pound is currently in a depressive cycle.”

The defence counsel provided written submissions which I will briefly summarise. It was submitted that the case was analogous to a decision of Channells, an unreported decision from 1997. It was submitted that the victim’s actions were to some extent a causal nexus leading to the injuries, although in this case the social milieu was different as the accused was relaxed amongst friends and showing off.
It was submitted that the facts in Channells were more serious, given the prior conduct of the offender and also reference was made to another authority where it was submitted that the category of offending was more serious. It was submitted that this was not worse case offending and it was the case that in the submissions that the observations of the Court of Criminal Appeal in Westerman [2004] NSWCCA 161, at [17], were to be considered. This I have taken into account.
It was submitted that the evidence from the psychologist’s report and the ACON report reveal that the offender has conditions which affect his daily life, such as his chronic problems with alcohol and marijuana, to regulate his mood swings.
Reference was made to the decision of the Court of Criminal Appeal of De La Rosa [2010] NSWCCA 194 to which I will refer in a moment and that because of what was described as the offender’s mental disorder, less weight should be given to general deterrence because the offender was said to be “not an appropriate medium for making an example to others”. What was said to be his mental “incapacity” is to be weighed and evaluated in light of the particular facts and circumstances of this particular case.
It was submitted also, or alternatively, that his physical and mental conditions create special circumstances warranting an adjustment of the relationship of the non-parole period to the balance of the sentence, given that he would have difficulty in custody with his conditions.
It was submitted on behalf of the offender that the Court might consider a suspended sentence, or a longer period of parole supervision. It must be pointed out, of course, that in order to suspend a term of imprisonment pursuant to s 12 Crimes (Sentencing Procedure) Act the term of imprisonment needs to be two years or less. A sentence of two years or less for the totality of criminality with which I am concerned would be quite clearly ‘manifestly inadequate’.
Reference was made to the pre-sentence report and the support of the mother and the attitude of the offender to the need for supervision. Reliance was also placed on the opinions expressed by Dr Jacmon and the need for treatment in the treatment plan that he advised.
It was submitted, in the combination of oral and written submissions, that the Court should take into account that the offence was not planned, there was a degree of pre-trial disclosure and assistance provided by the offender in locating the firearm, that the offender was remorseful and took responsibility for his actions and that he was entitled to a discount to reflect his plea of guilty at the first reasonable opportunity.
It was submitted that the objective facts did not reveal any malice or cruelty or motivation of hatred by the offender, which is correct.
It is submitted that the Court should consider the humanitarian consequences of the offender’s medical condition and that whilst it was acknowledged that certain aggravating factors such as the use of the gun, acting without regard to public safety were relevant matters, it was submitted also that he was unlikely to re-offend and he had the support of his family, particularly his mother.
The Crown submitted that the Court would need to have regard to the standard non-parole period, the objective seriousness of the offending in the context of the use of the weapon, in this case a dangerous weapon, the serious extent of the injury and the fact that the recklessness was of a very high order.
The Crown submitted that the recklessness and dangerousness of the offender’s conduct can be seen in the context of a fundamental understanding of firearms, as the Crown put it very succinctly, “you should never point a firearm in the direction of another.”
Further, the offender had put a bullet in the firearm and forgotten about it, on his version, and was handling a firearm when he was intoxicated, which was an extremely dangerous situation. That is clearly correct in this case.
The Crown submitted that the objective seriousness of offending fell at the higher end of the scale, that general deterrence was important and it was submitted on behalf of the Crown also that as the injury, or damage, to the victim was substantial that was a particular aggravating factor under s 21A(2).
The Crown pointed to the significance of the additional offence as an ongoing offence and the need to take the matter on the Form 1 into account with the principal offence.
It was submitted on behalf of the Crown that the report of the psychologist and the contents of the ACON report were, as I understood her submission, “of no relevance”.
It was submitted there was no significant hardship rendered to the offender in custody and there was no causal connection between the conditions with which he suffered and the offending behaviour. The offences were more connected to his alcohol intake on the night.
It was also conceded in the course of submissions that the utilitarian benefit of the plea of guilty was such that a 25% discount was to be given. I was also invoked to consider the decision of the High Court in Muldrock in relation to the standard non-parole period, which of course I will do.
I turn now to an assessment of the criminality in the context of the many legal issues I have to consider. It is to be borne in mind in this sentencing exercise that I am sentencing the offender for two offences which are related and overlap, but which are also separate in material respects.
The offender would not have inflicted grievous bodily harm upon the victim if he had not had in his possession firearm which was capable of discharging a lethal projectile and carried that firearm with him on the morning in question without regard for the safety of himself and the victim.
Thus in sentencing the offender I am required to sentence the offender in accordance with the principles encapsulated in the decision of the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly at [45].
I am required to consider the totality of the criminality of the offender and reflect that totality of criminality, bearing in mind of course I have to take into account the matter on the Form 1, by appropriate degrees of concurrency and accumulation if appropriate. It is appropriate in this case to approach the matter in that way.
There is also, as I said earlier, the consideration of the matter on the Form 1 to be taken into account in relation to the principal offence, that is the offence of recklessly inflicting grievous bodily harm. The consideration of Form 1 matters has been undertaken in a number of decisions but the starting point of consideration of this matter is the ‘Guideline judgment’ of 2002 in respect of Form 1 matters, at (2002) 56 NSWLR 146.
In that decision it was held the fact of a matter or matters to be taken into account on a Form 1 means that greater weight would ordinarily be given for the need for personal deterrence and the community’s entitlement to extract retribution. I appreciate of course these are all matters of degree, having regard to the relationship of the Form 1 matter to the principal offence and the character of the offending on the Form 1 matter.
The Court said that “The entire point of the process is usually to impose a longer sentence or to alter the nature of a sentence that would have been imposed if the principal offence has stood alone”.
It is wrong to suggest, the Court said, that the additional penalty should be small, sometimes it will be substantial. In this particular case the additional penalty, if it may be described as that given the character of the offending, does not need to be substantial.
However, the Court also noted that the sentencing process is only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences and apply a discount giving appropriate weight to the matters referred to in the judgment.
The Court stated that “deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence”.
Of course there are limitations in this regard including, as the Court pointed out, the maximum penalty for the principal offence and also the principle of totality. Rarely is it appropriate for the judge to signify the extent of any particular increase.
In the context of the submissions that have been made and of course the evidence in this case, including importantly the statement of facts prepared by the prosecution and accepted by the accused, it is clear that the offence of reckless infliction of grievous bodily harm is a very serious offence of this type.
Firstly, in dealing with the recklessness revealed in the facts and the offender’s own evidence, that was a high degree. The offender, of course, did not intend to cause harm to the victim, nor wish harm to him. However, at the time he acted oblivious to the presence of a projectile in the firearm that he had placed there, the handling of the gun in circumstances where he was intoxicated, reveals a high degree of recklessness.

The prior loading of the firearm, obviously, for no understandable reason, and then forgetting that the firearm was loaded also represents a high degree of recklessness on the part of the offender.
This was not a case of inadvertence or negligence or mere oversight. He produced the firearm, he had loaded the firearm, albeit some period of time before, it was pointed at the victim and it was obviously inappropriately handled, with his hand in the vicinity of the trigger mechanism.
The material available to me of course is somewhat deficient in that I have not been given access to the firearm to conduct an inspection or any particular relevant expert opinion that would assist me in understanding how the firearm could be discharged in the manner revealed in the facts.
But clearly when the firearm either was touched by the victim or by some involuntary or other motion of the offender, the trigger was engaged and the bullet was discharged from the firearm.
I have no information available to me in the facts or any other source as to whether the firearm had a safety mechanism that could be engaged or disengaged. It is quite clear though that the recklessness, as I have said, was a very high degree.
Obviously the grievous bodily harm is also of a very high degree. The victim has been permanently disfigured. He has lost the sight of one eye with the risk of potential further damage to his other eye, in the circumstances outlined in the facts.
Of course the future risk to his right eye is not the subject of any expert opinion. Grievous bodily harm can cover a range of really serious bodily harm. It might include a broken arm, it could include paraplegia or quadriplegia.
One could always think of cases that might be regarded as more serious. This was very much the discussion of the High Court in Veen (No 2) when asked to consider worst case scenarios where the majority observed that one could always conjure up a worst case scenario than the case at bar.
The objective facts of this matter are that the victim however, has been permanently disfigured and permanently disabled in a significant way that will affect him all of his life by reason of the conduct of the offender.
In this regard I note the victim impact statement, read by the victim’s mother. The impact upon the victim is, I fully understand, shared by his family. That statement reflects upon the harm done to the victim and the family and the physical and emotional toll that the victim has suffered, even allowing for the fact that the offender did not intend this particular harm.
His possession of the firearm, his production of it, his handling of it, his prior loading of it and his use of it, all contributed to the harm suffered by the victim.
I have taken into account, of course, the victim impact statement in accordance with the requirements of the Crimes (Sentencing Procedure) Act but it must be fairly said, even if it could be noted that the contents of the victim impact statement are not an oath and not subject to the test of cross-examination, they reveal much that could be reasonably expected to be found from the events as reflected in the facts.
The victim impact statement introduces a very human and personal dimension to consideration of the harm done to the victim and the family, which is obviously an important matter to be taken into account for sentencing for such offences.
With regard to the offence concerning the carrying of a firearm with disregard for the safety of himself and others it may be noted that the offender did not have the firearm in his possession for sinister purposes.
I could have my suspicions about that but there is no suggestion in the evidence that he kept the firearm for a lengthy period of time with a plan, for example, to commit a particular crime.
I accept that that is the case, notwithstanding his background of antisocial behaviour. But the facts are that the offender had the firearm in his possession illegally for about five years on his version and he also had in his possession ammunition that could be used in the firearm and which ultimately caused the serious harm to the victim I have described.
It could be said this was not a transient offence, nor an opportunistic offence, but was an offence that was a culmination of what might be described as continuing illegal conduct.
Even accepting the offender’s version of events, which I ultimately must in the absence of other evidence, that he found the firearm, put it away and forgot about it for a period of time, he had absolutely no right to have it in the first place, no right to continue to possess it, no right once he had rediscovered it to take it out, to show it to people, to arm it and to produce it in such dangerous circumstances as arose in this particular case.
Ultimately, I have concluded that the principal offence is not the worst case committed by the worst offender but it is a very serious offence of its type given the character of the recklessness and the catastrophic effects and consequences of that recklessness.
Further, the firearm offence, if I might call it that, the Sequence 2 offence, is a very serious offence of its type, being one that reflects not momentary criminality but, as I said earlier, the culmination of continuing criminality.
The legislature has made it very clear that the possession and use of firearms is to be seriously regarded and this has been reflected by increased maximum penalties over recent years.
The reasons for this are reflected very much in the facts of this case and the consequences of the continuing actions of the offender. If the firearm had been handed in by the offender, he having no right to possess it, these tragic events would not have occurred.
In this context are to be considered, of course, the purposes of sentencing pursuant to s 3A and in that regard I am required to consider some matters that arise from the medical evidence and particularly the psychological evidence in the presentence report.
The purposes of sentencing that obviously have relevance to this matter are the need to adequately punish the offender, to prevent him and others from committing similar offences, to protect the community from the offender, to promote his rehabilitation, to make him accountable for his actions, to denounce his conduct and to recognise the harm he had done to the victim.
All those matters, to varying extents, have relevance in this matter, being matters identified as to be taken into account pursuant to s 3A Crimes (Sentencing Procedure) Act.
It was submitted on behalf of the offender that less weight might be given to general deterrence by having regard to the “diagnosis” of Dr Jacmon. Whilst I have no doubt of Dr Jacmon’s considerable skills as a psychologist, his report is extensive and thorough, ultimately there are two features of that report.
I accept that he has assessed certain symptoms consistent with particular conditions, but he is not a medical practitioner. I have no psychiatric evidence.
Secondly, whilst the offender has had treatment in relation to supposed psychiatric matters and is being given medication consistent with the existence of certain conditions whilst in custody, which have a positive effect, there is no other evidence of the offender’s treatment outside of custody, nor is there any evidence of the offender’s willingness whilst at large to engage in treatment when the opportunities have arisen.
The submissions were made to the Court that I should have regard to what were described as principles enunciated in the decision of De La Rosa.
In that decision the learned Chief Judge at Common Law of the Supreme Court, Justice McClellan, as Justice Sperling had done earlier in the decision of Hemsley in 2004, sought to summarise many authorities that deal with the treatment of a prisoner where mental illness or disability is present in a particular case to a particular extent, whether causally connected to the offending or relevant only as a subjective matter, or both.
He summarised one aspect of the matter, and this is what is relied upon by the accused and I am prepared to accept it, in the following terms; where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced.
Further, it may also have the consequence that the offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed.
It may also mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.
It may further reduce or eliminate the significance of specific deterrence, conversely, it may be that because of a person’s mental illness they may present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence.
Of course his Honour stressed that a mental illness or mental health problems may not necessarily amount to a “serious psychiatric illness” before they will be relevant to the sentencing process.
Even accepting Dr Jacmon’s findings, not seeing them so much as a diagnosis but a finding of the presence of particular symptoms particularly consistent with bipolar disorder and other related conditions to which he has referred, and even accepting that his bipolar condition may have, if it existed, contributed to his determination to possess the firearm over a period of time, it is also be borne in mind that he has what I have already referred to as ‘antisocial personality’ traits, which are reflected in his criminal history. That might also explain this conduct.
There is, however, nothing in the evidence to suggest that his production of the firearm at risk to the victim and others including himself was in the course of an act of self destruction or a manic state or related in any way to a depressive condition.
It may be that his excessive drinking was related to these matters and it may be that thus there is an indirect connection with the events in question but there is no direct causal connection.
Even if such a casual connection could be found on the evidence reflected in the statement of facts and the psychologist’s opinion and the offender’s evidence in the context of the offender’s criminal history, and even accepting that he may have been undiagnosed or untreated at the relevant time, it does give rise to the consideration of the matter adverted to by Justice McClellan and also referred to by Chief Justice Gleeson in Engert where, to paraphrase their Honours’ more eloquent expression of it, where there is a proven causal connection between a mental illness and disability and offending, whilst it may require less weight to be given to general deterrence, it may require greater weight being given to personal deterrence or specific deterrence and consideration of the protection of the community.
This in fact was the very essence of the sentencing exercise involved on the second occasion where Robert Vincent Veen was convicted of manslaughter and his matter was determined by the High Court in 1988.
There is also nothing in the evidence so far as the mental state of the offender at the present time which suggests that there are any specific hardships in custody by reason of that fact. In fact, as I understand it, the offender is compliant with his medication and it has been positive for him.
Of course the assessment of Dr Jacmon is relevant in this matter, but not so much in the context of the assessment of principles enunciated in De La Rosa relating to the assessment of the purposes of sentencing reflecting upon the moral culpability of the prisoner or the objective criminality, but more relevant to the assessment of the issue of “special circumstances” pursuant to s 44 Crimes (Sentencing Procedure) Act and thus the determination of the non-parole period.
With regard to the Form 1 matter, I appreciate that the cultivation of Indian hemp plants was, on the offender’s account, for personal use. There was some professionalism in the cultivation, as I have noted from the facts, but that is not necessarily inconsistent with the personal use of the plants.
I note his cannabis dependence has been a factor in his offending over a period of time, as has his alcohol dependence but he has not sought really to seriously address these matters before these calamitous events.
There is also little evidence in this matter that the cannabis played any role in the commission of the principal offence and when the offender did give evidence he referred more to the ingestion of beer rather than the use of cannabis as affecting him.
Obviously the Form 1 matter has a diminished salience of the sentencing proceedings for the reasons I have outlined from the guideline judgment.
I am required, of course, to have regard to the standard non-parole period for the offence of recklessly inflicting grievous bodily harm.
The proper approach to this matter as summarised, from the decision of Muldrock v The Queen (2011) 244 CLR 120, is that it is essential to recognise that the fixing of the non-parole period is only one part of the larger task of passing sentence. Fixing the appropriate non parole period is not to be treated as if it was a necessary starting point or the only important end point in framing a sentence to which Division 1A of Pt 4 applies.
The legislation requires an approach to sentencing where standard non parole periods apply that is consistent with the approach to sentencing described by Justice McHugh in Markarian (2005) 228 CLR 537, particularly at [51], where the Judge is required to identify all relevant factors to the sentencing procedure and give them such weight as is appropriate in the case.
The Court is obliged to have regard to the full range of factors in relation to the determination of the appropriate sentence. In that regard the Court is mindful of two legislative guide posts, the maximum sentence and the standard non-parole period.
The latter requires that content be given to its specification as the non parole period for an offence in the middle range of objective seriousness, meaningful content cannot be given to the concept of taking into account characteristics of the offender, the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or a class of offenders. It is to be determined wholly by reference to the nature of the offending, then the court is required to assess relevant matters that are subjective matters.
The Court is required ultimately to identify all the relevant facts of the matters of the circumstance which the judge concludes bear upon the judgment required. This obligation applies in relation to offences with a standard non-parole period regardless of whether the offender has been committed after trial, or whether the offence might be characterised as low, middle or high range of objective seriousness of such offences (see [17] - [29]).
With regard to the relevant consideration of s 21A Crimes (Sentencing Procedure) Act in this matter, as I am required to do, noting the terms of (1) of that section and the requirement of consideration of matters under (2) and (3) as additional matters to those otherwise able to be concluded from the facts and the pleadings. It is the case, as was conceded in submissions, that an aggravating additional factor in this matter, in relation to the reckless infliction of grievous bodily harm, was the actual use of a weapon.
It might be implied that that would be so, given that grievous bodily harm was inflicted, but the character of the weapon in this matter is to be so regarded as an additional aggravating factor.
Of course, it is to be borne in mind that the use of the weapon is in a general sense an element of the related offence for which a sentence must be imposed which will be partly concurrent and accumulative of the principal offence as the pleadings of that matter made clear.
A further aggravating factor in relation to the offence of recklessly inflict grievous bodily harm was that it was an offence committed without regard for public safety. Again, that is self-evidently a key characteristic of the related offence, to which I have just referred, given the pleading in it.
The Crown submitted that the infliction of substantial bodily harm of the victim was an additional aggravating factor. I cannot accept this submission because the infliction of grievous bodily harm is a relevant element of the offence, as earlier discussed with the learned Crown Prosecutor, whose submissions were, of course, most helpful in the determination of this matter.
It is to be borne in mind that s 21A(2) provides that the Court is “not to have additional regard to any such aggravation in sentencing if it is an element of the offence.” The pleading of the infliction of grievous bodily harm would, clearly in my view, include the infliction of substantial bodily harm.
Although the criminal history of the offender does not entitle him to any leniency I cannot adopt the submission of his counsel that it is an aggravating factor in this matter.
With regard to mitigating factors I accept that the offences were not “planned”. Naturally, having regard to the psychological report and the guarded prognosis of the offender and his past performance as revealed in his criminal history, I could not conclude that the offender is unlikely to re-offend or has good prospects of rehabilitation.
I am, however, satisfied that the offender has shown remorse by accepting responsibility for his actions. This is acknowledged in a range of ways, firstly although he fled the scene with the other friends of the victim, by ringing the ambulance, apparently he was close by. He revealed the whereabouts of the firearm as best he understood them, he was not the person who hid the firearm, I have no reason to understand why the victim’s other friend hid the firearm, but that is precisely what he did.
The offender gave evidence of accepting responsibility for his actions. He pleaded guilty at the first reasonable opportunity and has expressed his remorse to the Probation and Parole Service and the psychologist.
There is no suggestion in the offender’s evidence or the facts of the case that the offender was not fully aware of the consequences of his actions because of his age or any disability.
The plea of guilty is of course a mitigating factor, however the offender also receives the discount to which I have referred, following upon the guideline judgment of Thomson and Houlton, which in fact compels me to give him a 25% discount upon the otherwise appropriate sentence.
I am also of the view that the offender has provided assistance to the law enforcement authorities in the investigation of this matter as revealed in the facts. Although he and the others fled the scene after the victim was initially injured, it seems that this was more a reaction of panic than any deliberation.
He had the presence of mind to ring triple-0 and assist in other ways. Of course, it would have been better to have remained to assist directly. The facts are somewhat confusing in this regard because it seems as though the victim was assisted down the stairs by someone to be taken to the ambulance at a later time. It must be also said that what did occur for all concerned, including of course the victim, was unforeseen, sudden and shocking.
I notice I said earlier that it was not just the offender who fled but the victim’s other friends, who bore no criminal responsibility, as I understand it, for the conduct of the offender.
I have already adverted to s 44 Crimes (Sentencing Procedure) Act. I have determined that there are special circumstances. The law requires me to take into account first of all the effect of partial accumulation, that is a special circumstance that will require an adjustment of the non-parole period for the accumulative sentence and the accumulative sentence in this matter will be for the more serious offence, the infliction of grievous bodily harm.

The other special circumstances in this matter, bearing in mind the previous times the offender has had in custody and other matters that have arisen in the case, are the need for the offender to have professional assistance to adjust to community living, the need for an extended period of supervision to address the matters identified in the Probation and Parole Service report and in Dr Jacmon’s report.
Ultimately the non-parole period effectively imposed for the offender represents approximately 66% of the total sentence, if special circumstances other than accumulation were not found the non-parole period would represent 75% of the total sentence.
The adjustment is modest but in my view sufficiently reflects the matters that are to be taken into account in making that finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act.
I trust that I have addressed all the matters, as anyone who has sat here to listen to what I have had to say about the matter, including the offender, would now understand, the sentencing of offenders is not a simple exercise undertaken by throwing darts at a dart board or tossing dice on the ground and coming up with a number that first appeals.
One is required to weigh up a range of matters, the interests of the victim, the interests of the community, and of course the interests of the offender in the sense of endeavouring in some way to see that on the service of the sentence that when the offender returns to the community, as he must, the offender is in a better position to avoid offending as he did on this occasion and in the past, and as he was on that fateful morning of 20 October 2012 when the victim was so grievously wounded.
Could you stand up, thank you very much, Mr Pound. In relation to the Sequence 2 offence, that is the offence I have referred to shortly as carrying a firearm with disregard for the safety of yourself and others you are convicted. You are sentenced to a term of imprisonment of three years six months. That will date from 26 October 2012 and expire, on my calculation, on 25 April 2016.
In relation to the Sequence 1 offence, taking into account the matter on the Form 1, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of three and a half years to date from 26 April 2014. That non-parole period, on my calculation, should expire on 25 October 2017.
In relation to that sentence I fix a balance of sentence of two and-a-half years imprisonment, the two and a half years imprisonment will expire on 26 April 2020.
The total sentence is a sentence of seven and a half years imprisonment with a non-parole period of five years.
You can sit down now, thank you, sir.
Your counsel submitted, no doubt optimistically, that I might consider a suspended sentence, but you appreciate the totality of the criminality in this matter could not permit a sentence of two years or less.
I have had regard, of course, to the Crimes (Sentencing Procedure) Act, no other sentence other than a term of imprisonment can be imposed for this matter.
Yes, Madam Crown, are there any technical or other matters that need correcting? Apart from my judgment?
OWENS: Just to confirm, your Honour, that in imposing that sentence for Sequence 1, the reckless grievous bodily harm, that the Form 1 matter has been taken into account?
HIS HONOUR: I said that. I know, in fact I know I specifically said that. Yes. It is and it has been, yes, thank you.
WASSEF: Nothing arising, your Honour.
HIS HONOUR: Right. And no issue as to dates, Madam Crown, as far as you can best calculate?
OWENS: No, your Honour.
HIS HONOUR: Right, thank you very much. And Mr Pound, do you understand the sentence that’s been imposed?
OFFENDER: Yes, your Honour.
HIS HONOUR: You'll be eligible for release to parole on 25 October 2017. I can't direct that you'll be released to parole, that'll be a matter for the Parole Authority and that will include a consideration of all your circumstances at that particular time.
OFFENDER: Yes.

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Decision last updated: 21 April 2015

Medium Neutral Citation:	R v Pound [2013] NSWDC 336
Hearing dates:	1 & 6/11/2013
Decision date:	13 November 2013
Jurisdiction:	Criminal
Before:	Judge Norrish QC
Decision:	Total sentence of 7 years 6 months imprisonment with a non-parole period of 5 years.
Catchwords:	CRIMINAL – Sentence, inflict grievous bodily harm, carry a firearm with disregard for safety, early plea, standard non-parole period, health of prisoner, objective seriousness, matters on a Form 1.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	Bailey v The Director of Public Prosecutions [1988] HCA 19 R v Engert (1995) 84 A Crim R 67 Markarian v The Queen (2005) 228 CLR 537 Muldrock v The Queen (2011) 244 CLR 120 Pearce v The Queen (1998) 194 CLR 610 R v Westerman [2004] NSWCCA 161 R v Badanjak [2004] NSWCCA 395 R v Vachalec (1981) 1 NSWLR 351 The Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 The Queen v Smith [1987] 44 SASR 587 R v Thomson and Houlton [2000] NSWCCA 309 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Channells (Court of Criminal Appeal (NSW), 30 September 1997, unrep)
Category:	Sentence
Parties:	Director of Public Prosecutions Andrew John Pound - Offender
Representation:	Solicitors: Director of Public Prosecutions Saba El-Hanania Lawyers - Offender
File Number(s):	2012/334852