R v Russell

[2019] NSWDC 529

District Court

New South Wales

Medium Neutral Citation:	R v Russell [2019] NSWDC 529
Hearing dates:	20 March 2019
Date of orders:	21 March 2019
Decision date:	21 March 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraph [30]
Catchwords:	CRIME — Violent offences — Reckless wounding SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise SENTENCING — Subjective considerations on sentence — Special circumstances — Institutionalisation
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Damien John Anthony Russell (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: Keay (Crown) Solicitor: Townsend (Offender)
File Number(s):	2017/00275975

SENTENCE

1. HIS HONOUR: The offender, during the sittings in which his trial was listed for hearing pleaded guilty to count two on an indictment which alleged an offence on 27 May 2017 at Goulburn, whilst in company with Todd Pearce and Ashley McCook recklessly wounded Nathan Patterson. The Crown accepted that plea in full satisfaction of the indictment that was presented against the offender. That is an offence under s 35(3) of the Crimes Act and has a maximum penalty of ten years imprisonment with a standard non-parole period of four years.

2. The facts are as follows: The victim was serving a sentence in Goulburn Gaol. The three offenders, Mr McCook, Mr Russell and Mr Pearce were also inmates at that gaol at the time. On 27 May 2017 the victim was moved into unit two which housed this offender and Mr McCook and Mr Pearce.

3. At around 2pm on 27 May 2017, only hours after the victim had been moved into the yard he was approached by this offender and the other two offenders near the awning and gateway which leads to an area referred to as “The Circle”. At that time the victim was attacked by the group and stabbed a number of times before he escaped, running towards the showers. He fell to the ground and was further set upon by the group and again was stabbed a number of times by the same three offenders.

4. The Crown accepts the offenders intended to inflict something less than really serious bodily injury. Chemical munitions had to be deployed by the Department of Corrective Services officers which caused the group of attackers to cease their assault upon the victim. The victim was removed from the yard and corrections and medical staff observed that he had suffered a number of stab wounds to his back and shoulders. This offender and the other two co-offenders were removed from the yard. Following their removal all remaining inmates were removed from the yard and it was secured as a crime scene.

5. A review of CCTV footage showed that this offender and Mr Pearce threw items over the fence and into neighbouring yards. Police located two homemade shivs. Both weapons were forensically tested and each had DNA matching the profile of the victim located on them. One of the weapons had DNA matching the profile of the offender, Mr Russell, on the handle. The entire incident was captured by CCTV and I will come back to that in a moment.

6. The victim was treated by attending police officers for his injuries before being conveyed to Goulburn Hospital, where he was further stabilised prior to being airlifted to Canberra Hospital for further specialised treatment for his wounds. He suffered six wounds approximately 2 centimetres in length on his outer shoulder, shoulder blade, two in the middle of his back and two on his lower back. A CT scan revealed a left sided pneumothorax and right sided pulmonary contusions. A left sided chest drain was inserted for the pneumothorax and removed on 31 May. Staples to his wounds were later removed in the gaol. The victim declined to provide any information in relation to the matter and this offender declined to be interviewed.

7. In addition to the Crown facts the Crown tendered the CCTV footage of the footage from the correctional centre concerned. The Crown put submissions that this offender could be discerned from the CCTV footage and I could determine which offender was which in the footage. Having watched the CCTV footage on more than one occasion on my laptop I was able to make out this offender in the footage from the clip entitled, “C2064 yard front”.

8. Clearly this offender and his co-offenders were engaged in a joint criminal enterprise. The offender is criminally liable for the offence on the basis of the doctrine of joint criminal enterprise. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whom soever they are committed, a particular participant’s level of culpability is to be assessed by reference to the conduct of that particular participant.

9. I am satisfied beyond reasonable doubt based on the facts and the CCTV footage that this offender did actually stab the victim. The fact that the offender’s DNA was found on the handle of one of the shivs located, which also had the victim’s DNA on it, satisfies me that clearly the offender inflicted at least one of the wounds to the victim.

10. Although I was able to discern this offender on the CCTV footage, I am not able to say whether he inflicted more than the one wound. The incident happened quickly and there was a level of ferocity associated with it. However, I note the Crown’s concession as recorded in the facts that it accepts the offender intended to inflict something less than really serious bodily injury.

11. I note the victim suffered six wounds and his injuries were significant in that a pneumothorax occurred requiring a drain to be inserted and he needed to be airlifted to Canberra Hospital.

12. Unsurprisingly, based on what is contained in the psychological report tendered on the offender’s behalf, it appears that the offence formed part of retaliation for conduct previously engaged in towards the offender and his associates by the victim and his associates. The offence is a serious one, but I assess the objective seriousness as being a little below the midrange level of objective seriousness.

13. The offender is currently 42 years of age. He has an extensive criminal history dating back to when he was a juvenile. As an adult he has a number of offences of robbery and armed robbery on his record. In 2008 he was sentenced for an offence of malicious wounding. Clearly his record disentitles him to any leniency here.

14. The Crown in its bundle has included a breakdown of the time the offender has spent in custody since 17 November 1993 when he was 17 years of age. That breakdown shows that in that 25 year period he has spent less than 20 months in the community. Clearly the offender is institutionalised insofar as his connection with the correctional system is concerned. This is also supported by the psychologist’s report, which I will shortly discuss.

15. That is a report dated 18 March 2019 by Jason Borkowski, a forensic psychologist, whose CV suggests he has considerable experience in working with inmates held in Corrective Services custody. The report records at the time he was seen by the psychologist the offender was orientated as to time, place and person and there were no abnormalities noted in his mood or effect. The report outlines the offender’s background as reported by the offender.

16. He was raised by his mother until he was made a ward of the State when he was nine. At 14 he did live with his aunt and uncle, although still as a State ward. He never knew his biological father. He told the psychologist that he had regularly seen his mother physically abused by a step-father during his young life. He described his mother as an alcoholic and after he was removed from her care she became a drug addict.

17. The psychologist notes the length of time the offender has spent in custody in the past. The lengthy period of time he has spent incarcerated results in him having few friends or acquaintances who are not anti-social or criminals.

18. His performance at school was poor and he was expelled in year 9, which concluded his formal education. He has no notable periods of employment when in the community.

19. Six years ago he received extensive burns to his body as a consequence of an attack while he was in custody. He has incurred other injuries while in custody from time to time. He reported to Mr Borkowski his early commencement of the use of prohibited drugs, having used over time heroin, cocaine and benzodiazepines.

20. In terms of his attitude to the current offence the psychologist records the offender stating, “No-one deserves to get hurt” and that if he felt that there was another way to resolve problems in custody he would do so.

21. Psychometric testing was administered to the offender. He was diagnosed with having a generalised anxiety disorder, a major depressive disorder and another specified personality disorder being paranoid and anti-social personality disorder. The psychologist considers that his risk of reoffending could be reduced if he was able to engage in the violent offender treatment program while in custody.

22. 22    Clearly when released from gaol the offender will require extensive support and supervision if he is to have any hope of remaining free of further offending.

23. 23    The offender pleaded guilty during the sittings that the trial was listed to commence in. That trial would have required the attendance of a number of Corrective Services staff to give evidence. I propose to allow a 10% discount for the utilitarian value of his plea. The eventual plea of guilty and his statements to the psychologist support a limited finding of remorse here.

24. Given his criminal history and the length of time he has spent in custody in the last 25 years his prospects for rehabilitation are guarded, bordering on poor.

25. His institutionalisation and the fact that his sentence will be accumulated upon another sentence which has now expired justify in my view a finding of special circumstances. The offender’s prospects for rehabilitation will be increased if he had a longer period on supervised parole.

26. While this offender was serving a sentence of imprisonment at the time of the commission of the offence that I am to sentence him for, that sentence has now expired. As I see it, s 56 of the Crimes (Sentencing Procedure) Act only has application when an inmate is still serving a sentence at the time that he is to be sentenced for another offence committed on an inmate.

27. The offender has been in custody solely in relation to the current offence from 24 October 2017. I propose to commence his sentence from that date. I have had regard to the objective of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.

28. General deterrence is of particular importance when sentencing for serious violence committed by an inmate on a fellow inmate in a correctional centre. The courts must impose sentences of sufficient severity in order to deter this inmate and others from engaging in such violent behaviour which threatens the wellbeing of other inmates.

29. I have had regard to the maximum penalty and the standard non-parole period as being taken into account as a legislative guidepost. I have departed from the standard non-parole period because of my assessment of the objective seriousness of the offence and my finding of special circumstances.

Orders

30. Mr Russell, you are convicted of the offence to which you pleaded guilty. You are sentenced to a term of imprisonment consisting of a non-parole period of two years and a balance of term of one year. That is a total sentence of three years imprisonment. It commences on 24 October 2017 and expires on 23 October 2020. You are eligible to be released to parole on the expiry of the non-parole period which expires on 23 October 2019, being this year. You should be released that day pursuant to a statutory parole order. Whether you are in fact released that day remains a matter for the State Parole Authority, which will no doubt have regard to your behaviour in gaol between now and then. So it is a sentence of three years with a non-parole period of two years. It dates from 24 October 2017. It expires on 23 October 2020. As I see it he should be released to parole pursuant to a statutory parole order on 23 October 2019.

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Decision last updated: 01 October 2019