R v Scott

[2007] NSWDC 104

CITATION:	R v Scott [2007] NSWDC 104
HEARING DATE(S):	20/04/07
JUDGMENT DATE:	20 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See para 48, 49 and 50.
CATCHWORDS:	Sentence - sexual assault - categories of sexual penetration - mentally ill offender - aboriginal offender.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health Act 1990
CASES CITED:	Queen v Callaghan [2006] NSWCCA 58 Fernando v Queen (1992) 76 ACR 58 Queen v Welch (1997) Veen (No 2) v The Queen (1988) 165 CLR 465 The Queen v Engert (1995) 84 ACR 67 R v Scognamiglio (1991) 56 A Crim R 81 R v Letteri (unrep, NSWCCA 18/03/92) R v Israil [2002] NSWCCA 225 Queen v Hemsley [2004] NSWCCA 228 Ibbs v The Queen (1987) 163 CLR 447 Reynolds v Wilkinson (1948) 51 WALR 17 The Queen v O [2005] NSWCCA 327 R v Lattouf (unrep, 12/12/96 NSWCCA) R v Way [2004] NSWCCA 131
PARTIES:	Regina Terrence Sydney Thomas Scott
FILE NUMBER(S):	06/71/0118
COUNSEL:	Mr Corr
SOLICITORS:	DPP Ms Miles, Aboriginal Legal Services (NSW ACT) Ltd

SENTENCE

1 HIS HONOUR: In this matter the sentence I propose to impose upon you, taking into account the matter on the Form 1, will be a total sentence of seven and a half years’ imprisonment. I propose to fix a non parole period of three years and nine months to commence from the date you came into custody which was 30 June 2006 and your expiry date, the date you will be eligible for release to parole will be 31 March 2010.

2 In sentencing you I have given you a discount upon the otherwise appropriate sentence of twenty-five per cent. You can take a seat and I will give my reasons.

3 Terrence Sydney Thomas Scott today appears for sentence in relation to an offence to which he pleaded guilty before myself on 14 March 2007 being an offence alleging that he on 27 May 2006 at Wagga Wagga in the State of New South Wales did have sexual intercourse with BB without her consent and knowing she was not consenting thereto and at the time of the commission of the said offence Terrence Sydney Thomas Scott did maliciously inflict actual bodily harm on the said BB. This offence brought pursuant to s.61J(1) Crimes Act 1900 carries a maximum penalty of twenty years imprisonment and it is an offence for which there is prescribed a standard non parole period of ten years in the Crimes (Sentencing Procedure) Act 1999 hereinafter referred to as the Sentencing Procedure Act.

4 The offender asks me to take into account in addition a matter that is on a Form 1, that is, an offence of committing an indecent assault upon the victim at or about the time of the commission of the principal offence and that I will do.

5 I sentence the offender on the basis that, as I understand it, it is agreed that the plea of guilty entered by the offender was one entered at the first reasonable opportunity and thus the offender is entitled as I have already just told him to a discount of twenty-five per cent upon the otherwise appropriate sentence to recognise the utilitarian benefit of the plea of guilty, which in a case such as this is great, given the trauma for the victim of having to give evidence of the relevant events if required so to do. I also accept that the plea of guilty represents an expression of contrition on the part of the prisoner in relation to this conduct and I note the expressions of contrition expressed by the prisoner in his evidence before me. I appreciate the difficulties for a man such as the prisoner to give evidence, given his limited educational attainment and his limited intellectual ability. I also note the stress that he must be under giving evidence, as well as being a person with a history of mental illness.

6 In sentencing the prisoner I have taken into account, as the law prescribes in the Sentencing Procedure Act, the victim impact statement of the victim. I have noted the statements made about the effect upon her, particularly her now much greater vigilance in public areas and the lack of trust arising from this incident towards other people. The statements of the victim of the effect upon her would, I would have thought, be readily understood even in the absence of a victim impact statement.

7 The facts of the matter are that this principal offence, as well as the matter on the Form 1, were committed in daylight hours on Saturday 27 May 2006, close to noon. The victim had left her accommodation at the Charles Sturt University South Campus near the old Wagga Teacher’s College and walked parallel with the showground down to the corner of Urana Street and Bourke Street. I need not go into the detail of the movements of the victim, but ultimately, near the corner of Bourke Street and Urana Street, which is a frequently used intersection I hasten to say, Urana Street being a major arterial road as is Bourke Street within that area of Wagga, the victim was approached by the prisoner who had quite clearly made up an inquiry of her to attract her attention. The victim crossed Bourke Street it would seem to, in part, get away from the prisoner, but he followed her and walked slightly behind her peppering her with questions one would assume trying to get her to stop. The victim continued to walk in an easterly direction towards Willans Hill along Urana Street when finally the prisoner grabbed her from behind over her right shoulder, forced her against a corrugated iron fence and the victim yelled out “get off me” and started struggling. The prisoner grabbed hold of the victim’s vagina on the outside of her clothing and penetrated her vagina with his fingers through the clothing. At that time he said “if you keep screaming I’ll wreck your pussy.”

8 The complainant reached back behind her and tried to scratch the prisoner. He hit her then on the back of the head three or four times with one of his hands. She continued screaming and tried to stomp on the feet of the prisoner. The prisoner responded by putting his hands over her mouth and nose. She complained she could not breathe and tried to bite his fingers. The prisoner then used his left hand to grab hold of her left breast, which act, as I understand it, constitutes the offence on the Form 1. He squeezed her right breast and kept his hand there. He then pushed her forward and tried to knee her in the stomach. As she was pushed towards the ground he punched her in the left eye at which point, fortunately for the victim, she was able to break away and run further along Urana Street. The prisoner then ran away in the opposite direction and was observed by a passing motorist running as I understand it in a southerly direction towards Fernleigh Road at the top of the hill. The victim sought assistance and was eventually taken to Wagga Base Hospital when that assistance came.

9 The prisoner was spoken to about the matter on 31 May, but denied any involvement in the assault, although police obviously had some information at that time that led them to the prisoner. One matter that would have assisted them was the fact that the prisoner drove what would appear to be his mother’s motor vehicle to the point where he first confronted the victim before following her along Urana Street. This vehicle was registered as I understand it to his mother and presumably was easily located.

10 A search of the prisoner’s premises revealed a football jumper in the bedroom of the prisoner, which was later significant in the identification of him by a witness. The victim herself was able to identify the prisoner from a photographic identification procedure. The further witness who was able to identify the accused came forward with a statement of that identification on 30 June 2006. As I understand it from the material available to me from the parties this is the date of the arrest of the prisoner. The identifying witness was able to point out the jumper located in the possession of the prisoner during the investigation in late May as being very similar to that of the person that the witness had seen running away from the scene of the crime.

11 The prisoner gave a DNA sample. The DNA sample given by the prisoner contained a DNA profile which was the same as a DNA profile located on the jumper worn by the complainant at the time of the attack.

12 The victim, when treated firstly at Wagga Base Hospital and then Griffith Base Hospital was observed to have a number of injuries to her face. They are particularised in the statement of Dr Reeves from Griffith. I have seen photographs of the victim’s injuries. The injuries themselves are not major injuries, they involve bruising, superficial lacerations and swelling, but they do constitute actual bodily harm and it is to be fairly said that the victim was fortunate, even in the context of the blows struck to her by the prisoner, not to suffer more serious physical injuries. That having been said however, the extent of violence used by the prisoner was significant. It was not a case of one blow causing the injuries, but a number of blows, an attempt to knee the victim in the stomach and the pushing of the victim to the ground where she was struck again. In the context of the type of conduct that would give rise to a charge of this type, it must be fairly said that this is a significant violent episode.

13 In respect of the objective circumstances I note that the offender was not armed with a weapon. He was not disguised in any way and thus was able to be identified. He wore clothing which remained in his possession and apparently could be readily identified because it was quite distinctive. He was driving a car that was readily described because of some damage to its panel and drove a car which was connected to his mother. His detection one might have thought was inevitable, bearing in mind of course that he was already known to the police and there would have been records held by the police which would have assisted in locating him in due course.

14 It appears to me having regard to those particular matters I have identified a moment ago that the assault upon the victim was not a planned assault, the victim unfortunately was at the wrong place at the wrong time, but that having been said the conduct was clearly persistent and deliberate.

15 I will turn in a moment to the prisoner’s mental state at the relevant time because that may reflect upon an assessment of the objective gravity of the criminality and of course any other matters relevant to sentencing.

16 With regard to the prisoner’s background I note firstly that he was born on 23 August 1982 and thus at the time of the commission of the offence would have been approximately twenty-three years of age. He has a record of findings of guilt in the Children’s Court and in the Local Court, previous to his appearance in the Wagga District Court in 2004, those matters were related to his abuse of cannabis it would seem. However, before me, he was convicted of an offence of a robbery and he was sentenced because of the unusual circumstances of his custody at that particular point of time and other features to a total sentence of two years’ imprisonment with a non parole period of four months, that sentence was to commence from 18 February 2004 and the non parole period I fixed enabled the prisoner to be released on the day of the sentence. He was therefore subject to parole on my calculation for a period of twenty months thereinafter. In respect of that matter the partial remarks on sentence are available to me. The remarks on sentence that I have are of 18 June 2004, but they would need to be seen in the context of some remarks on sentence that I had previously given when making orders when the matter first came before me. The prisoner was released to parole on the order that I made on 18 June, however, I think that order was made in the context of pre served custody. In fact as I recall the situation that happened at the point of time he had been at liberty since I had granted him bail at an earlier time and the structure of the order that I made in June 2004 was to reflect that reality. Unfortunately, however, his parole was revoked on 20 September 2005. He was released to parole again on 21 March 2006. Ultimately his parole was revoked again after he came into custody in relation to the current matter and his parole was revoked as I understand it again and the balance of the parole expired in mid August 2006.

17 I am informed from the material available to me, although it is not entirely clear from the criminal history, that the offender was charged just prior to the commission of this offence with a common assault which was discharged by the Magistrate pursuant to s.32 Mental Health Act. I also note in relation to his offending behaviour that a number of days after the police first spoke to him about this matter as I would glean it from the criminal history on or about 4 June 2006 he was charged with offences of common assault, malicious damage to property and contravene apprehended domestic violence order on two occasions, for which offences on 19 June 2006 he was placed on bonds pursuant to s.9 Sentencing Procedure Act for a period of six months. I do not have the full details of any of those offences that I have referred to, but it would appear to be that the offence with which I am concerned was one of a number of offences committed over a relatively short period of time which may fairly reflect upon his mental instability at that particular time.

18 I have read the reports that have been prepared in relation to his breach of parole. It is clear that the parole eventually was revoked after his arrest in relation to the current matter because of his inability to adapt to normal community life reflected in the conduct to which I have referred. The prisoner has remained in custody since 30 June 2006, part of that period of course has been concerned with the balance of his parole. However, I am of the view that, notwithstanding the fact I would be entitled to accumulate or partially accumulate the sentence I propose to impose in this matter, in all the circumstances of the matter, it is appropriate to date the current sentence from the date he came into custody for these offences. In that regard I have had close attention to the decision of the Queen v Callaghan [2006] NSW CCA58 particularly the observations of Simpson J set out at [11] through to [22]. There is a discretion that exists. I must be careful either to not double dip or double punish, however, in the circumstances given the length of the term of imprisonment I propose to impose I do not believe there is any injustice in the balance of parole last served being subsumed into the current sentence.

19 Of course, like all sentencing matters, this is a matter with some complexity even though the actual structure of the sentences do not create much difficulty. The Form 1 matter is a relevant matter to take into account. I note the guideline judgment in relation to Form 1 matters, but ultimately, given its close relationship to the significant criminality reflected in the principal count, it of itself does not require a substantial adjustment of the appropriate sentence for the principal offence, albeit there may be instances this will happen where there are significant matters on a Form 1 to be taken into account for the principal offence.

20 So far as the guideline judgment is concerned of course, it clearly states that matters on the Form 1 are of relevance to the sentencing exercise for the principale offence. They may, for example, place the principal offence in the proper context and of course here, the conduct of the prisoner in grabbing the breast of the victim is an aggravation in the sense that it is an additional criminal act of the prisoner extended towards the victim. Ultimately, however, it is overwhelmed in its seriousness of course by the character of the principal offence and the related conduct of the prisoner.

21 The prisoner is an Aboriginal man. He has lead a life of disadvantage as I understand his background. He has had little in the way of paternal support. I would expect from the evidence available to me that he and his mother have lived through periods of considerable financial and other difficulty.

22 In sentencing the prisoner I have had regard to the decision of Wood J in Fernando v Queen (1992) 76 ACR 58 at [63] to [64]. In this particular matter of course there does not appear to be the direct cause or connection between the circumstances of the prisoner and the circumstances of the offence. Whilst the prisoner has stated in his evidence before me that at the time of the commission of the offence he was affected to some extent by alcohol and drugs, I note he was able to drive to the scene of the crime and he was able to approach the crime in a reasonably considered way. The victim’s account gives evidence of his questions obviously seeking to lure her attention. That having been said his difficulties with alcohol and drugs may well be a reflection of his life experiences and his social circumstances. As Hidden J said in the decision of Queen v Welch (1997):

“Only the myopic in this community would deny that much of the contact of Aboriginal people with the criminal law can be traced to their dispossession and the breakdown of their culture. A high incidence of imprisonment of Aboriginal people and often the deleterious and sometimes tragic effects it has upon them are a justifiable concern to the community to recognise that background in an appropriate way for the purpose of sentence is neither discriminatory or paternalistic.”

23 On the other hand however the prisoner’s aboriginality is not the sole explanation for the commission of this offence. In fact, the explanation for it is difficult to identify. Clearly, the matter that overhangs the entire proceedings is the mental health of the prisoner and his mental state, particularly at the time of the commission of the offence. I note from the evidence of the prisoner that he has said that at the time of the commission of the offence he was not adhering to his regime of medication to which he had been subject to for some period of time. There was evidence before me in 2004 that the prisoner’s failure to take medication could have an effect upon his conduct and that he suffered from conditions or a condition which required regular medication. There is no evidence before me that the failure to take medication in this matter however is anything other than the fault of the prisoner. That, having been said of course, people with mental illnesses are not sometimes in the best position to be able to properly control their intake of medication and they are people that need close professional assistance. It is the very character of the mental condition from which they may suffer at the relevant time. I note what I said in my judgment of 18 June 2004 at pages 1 through to 3 concerning the mental state of the prisoner at that time and relevant to that sentencing exercise. In that particular matter, I made specific reference to Veen (No 2) v The Queen (1988) 165 CLR 465. I also made reference to leading authorities such as Engert, Scognamiglio, Letteri and Israil [2002] NSWCCA 225, where judges of greater authority have discussed the relationship of mental illness to the sentencing of offenders suffering from such a mental illness in the instant case. An additional authority that might be referred to at this point of time is Queen v Hemsley [2004] NSWCCA 228 which has been cited by learned counsel for the prisoner who skilfully represented his interests.

24 In that judgment Sperling J summarised the matter by saying that mental illness may be relevant in a number of ways in sentencing. Firstly, where mental illness contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced. There may not then be the same call for denunciation and punishment warranted in the particular case. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person. On the other hand a fourth matter to be taken into account in a countervailing manner may be that the level of danger which the offender presents to the community may need to be taken into account and this may sound in special deterrents.

25 Here of course the balance is delicate. Here of course by any reasonable examination of the evidence I do not believe I am fully informed as to the relationship of the prisoner’s mental condition to the offending behaviour. The material suggests to me that the prisoner has had a history of psychotic episodes and I am quite satisfied relevantly that he has suffered over a long period of time a significant mental disorder which affects his conduct. Not only do I have the benefit of Dr Greenberg’s report which was available to me when I sentenced him on the last occasion which I have taken into account again, but I also have other reports which bring a more up to date picture. I must confess I was not particularly assisted by Dr Greenway’s report tendered on behalf of the prisoner which ostensibly is of no real assistance to him. Dr Greenway’s analysis of the matter was undertaken in circumstances where he did not have the advantage of reading relevant records relating to the treatment of the prisoner in the past and Dr Greenway did not have the benefit of reading Dr Greenberg’s report. Dr Greenway saw the prisoner some time ago and since then there have been other assessments made of the prisoner which contradict Dr Greenway’s analysis that the prisoner did not relevantly suffer from a mental disorder of significance. I do not mean any disrespect to Dr Greenway, but even allowing for the fact that he had the opportunity to interview the prisoner it seems to me that he came to his conclusions without being fully informed of the situation. I make that finding in a manner which is to be regarded as favourable to the prisoner’s situation.

26 Frankly, on the basis of the totality of the medical evidence I cannot accept the finding made by him, which he himself allows is qualified in its foundation, that the prisoner does not evidence any disorder of formal content of thought. He found that the prisoner suffered from an intellectual developmental disability, which I believe is an added burden the prisoner does suffer from, but he could find no evidence of psychosis. In fairness to his report of course he may be solely dealing with the time at which he conducted the interview, that is a little unclear from the report.

27 The prisoner’s counsel today tendered material of more recent origin. Dr Olaf Nielsen on 2 February 2007 noted the prisoner at that time to be irrationally hostile with grossly impaired judgment. He noted the prisoner had a history of treatment for psychosis and he made observations consistent with the prisoner having psychotic thought disorder and he felt that the prisoner at that time earlier this year was a danger to himself and others.

28 A report prepared for the benefit of the Parole Board covers much of the history which I have taken into account of the prisoner and his treatment over a long period of time including reports from doctors that treated the prisoner when he was in the wider community at Wagga. It notes the prisoner’s history of drug usage and other factors that have contributed to his current situation. This report notes that the prisoner was stable when on Zyprexa. The prisoner tells me that he is on Zyprexa at the moment and I must say in fairness to him although his effect was somewhat flat he appeared to be relatively stable in his presentation in this court.

29 The recommendation to the Parole Board was that the prisoner should have community mental health supervision on his release and certainly needed to be maintained on medication and with medical treatment and other counselling. He recommended that if the prisoner’s mental health situation deteriorated whilst at large the prisoner should be placed under a community treatment order. He did not see him as being mentally ill at that time. He also suggested outside rehabilitation programmes as being of some assistance.

30 I do not believe I need analyse the material any further beyond coming to the conclusion that the prisoner does suffer from a long term mental disability and disturbance. It expresses itself from time to time in psychotic episodes so it is a condition that can be maintained it would appear at least to some extent by medication, however, in the circumstances of this matter, there is no evidence before me directly to show that he was suffering a psychotic episode at the time of the commission of the offence.

31 I am prepared to accept that he was not, however, maintaining his medication at the relevant time and this may well have contributed to his behaviour. Not only on this occasion, but on the other occasions within this period of time when he apparently acted in an anti-social way. The problem is of course that this conduct is a major and significant elevation of the level of anti-social conduct. It certainly is even more serious than the offence for which I sentenced him in 2004. It suggests that the prisoner is a person who does present as a possible or probable danger to other people and the facts of this case are eloquent testament to that position.

32 It is not much consolation to the community that the likelihood of the prisoner to behave in this violent way may be entirely dependent upon whether he chooses to maintain himself on his medication. I have determined even though the sentence I have imposed is significant that his condition over a long period of time is of such character and his current circumstances are of such a character that he is not an appropriate vehicle for the message of general deterrence be conveyed in this particular sentence. But there must be an element of personal deterrence in the sentence to deter him from this conduct in the future.

33 I can assure the prisoner that if general deterrence was a primary consideration in this case absent his mental condition that even though there was not an act of penile penetration the sentence would have been more significant than I proposed. Particularly bearing in mind that the prisoner was on parole at the relevant time which is a significant aggravating factor, although of course given his mental condition, it is a factor that might not have been deliberated upon to the extent that other offenders who are on parole and commit offences may do.

34 I have had regard to what has been said in the submissions of counsel about the heinousness of this particular crime and the type of conduct which is envisaged by the legislation. I have been taken to a number of authorities, the foundation stone of which could fairly be described as the decision of Ibbs v Queen (1987) 163 CLR 447. This appeal from the West Australian Court of Criminal Appeal concerned offences under a provision of the West Australian legislation that allowed for sentencing with the same maximum penalty of various types of penetration. In that matter the majority of the court held that the maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in the section. The Court said that the inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration as heinous as another if done without consent. The Court went on to cite with approval what had been said in Reynolds v Wilkinson, a West Australian authority. This approach to offences of sexual penetration in New South Wales is confirmed in decisions such as Queen v O [2005] NSW CCA 327, particularly the judgment of Sully J at [32] and [33]. However, it should be fairly said that his Honour did point out that the general proposition is not a proposition of “universal applicability in cases of digital penetration” and of course every case must be decided on its facts.

35 Of course, as Counsel for the accused said one could always envisage a worst case than the one at bar. In fact the learned Crown and I have experience of a matter that I have yet to complete involving clearly, without any controversial comment, far worse facts than this given all the circumstances. The truth of the matter is the prisoner attacked a stranger who had done nothing to provoke the attack or lead him into the belief that he had some entitlement had some sexual interest in the victim. The attack was a serious one with what could only be described as potentially profound long term effects upon the victim.

36 In sentencing the prisoner I have also considered what has been said in cases such as R v Blackman and Walters [2001] NSWCCA 121 and Lattouf (cited in R v Henry (1999) 46 NSWLR 346 at [10]) about a need to in sentencing offenders to achieve all the interests of justice which include not only retribution and punishment but also the promotion of rehabilitation and endeavouring to ensure that offenders can return to the community in a condition which will prevent further offending. This is very much in the community interest.

37 These authorities and the decision in Veen (No 2) have led to s.3A setting out the purposes of sentencing and I have taken those purposes into account. Again here the matter is not clear cut and there are many countervailing issues to be considered, although, as I have said the general deterrence issue is not as great in this matter as it might otherwise be. I think I should also give proper regard to not only making the prisoner accountable and denouncing his conduct and recognising the harm done to the victim, but also still endeavouring to promote his rehabilitation as I did in 2004. It is in this context, albeit by reference to the principles that arise under the section that I have considered that there are special circumstances arising pursuant to s.44 Sentencing Procedure Act. Here self-evidently the prisoner will need professional assistance to adjust to community living, a matter with which he had difficulty in the past. I am mindful of the fact of the previous breaches of parole. Again these are manifestations in my view of his long-standing mental instability and I believe that on release to the community he needs very intensive professional guidance as to matters of treatment and counselling as well as guidance in relation to maintaining him on medication which can at least control some of his impulses. It seems to me that the Probation and Parole Service is in a position to provide this professional guidance and it should be for an extended period of time.

38 In relation to s.21A Sentencing Procedure Act I note its terms. I note of course any aggravating or mitigating factor that I find to be relevant does not necessarily require the court to increase or reduce the sentence for the offence. In this particular matter of course a number of the relevant aggravating factors that might arise ordinarily under s.21(2) might also be relevantly regarded as pleaded in the elements of the charge.

39 This is a case that requires proof by the Crown of the malicious inflicting of actual bodily harm, which must of itself involve actual violence and involve some substantial harm to the victim.

40 Ultimately, for the purposes of sentencing the most relevant aggravating factor that I can identify is that the offence was committed whilst the prisoner was on conditional liberty and that has been discussed earlier.

41 I have given consideration to whether the victim was herself vulnerable. I appreciate she was a young woman and she was defenceless against the prisoner, but I could not conclude ultimately given the fact that this occurred in daylight hours in a public area that the victim was inherently vulnerable. Although, as I said, whilst she fought bravely against the prisoner, and her courage is to be commended, she was no match for his greater strength.

42 In relation to mitigating factors there are few. Ultimately I note the plea of guilty and that receives the utilitarian benefit. The prisoner cannot however be said to have good prospects of rehabilitation given the past history, however, his rehabilitation should still be encouraged and as I said promoted by the officers of the Probation and Parole Service. The issue of whether the prisoner was fully aware of the consequences of his actions is one I cannot find favourably to him under mitigating circumstances. Whilst there is some relationship between his offending behaviour and either his mental disability or his failure to address himself to his treatment for that mental disability, the facts of the matter speak eloquently of the prisoner knowing what he was doing when he attacked the victim in the way in which he did and in fact I believe his evidence before me which was given in a very straight forward fashion given his disabilities confirms that to be so.

43 I note whilst in custody he has been assaulted on 23 November 2006. I am not informed that he is particularly in protection. I note of course being a young Aboriginal man with his mental disability his time in custody will provide some circumstance of hardship and I trust that he will receive all available protection. It does not fill me with any great thrill or joy to be sending a young Aboriginal man, with this person’s background, to prison for a significant period of time in the scheme of things. However, ultimately, the sentencing of the prisoner cannot be overtaken by subjective circumstances that might otherwise attract sympathy.

44 The facts of the matter are that the prisoner’s conduct was violent, random and a cause for considerable concern and it raises difficult questions about his capacity in the future to avoid offending. Of course without the benefit of the crystal ball that was taken away from me by the Chief Judge when I got appointed I am not in a position to safely predict those matters. But I can only trust that both the time spent in custody and the time on parole will assist the prisoner to lead a more lawful existence in the wider community.

45 I trust that I have covered all the relevant matters. I have had to give this judgment upon completion of the submissions simply because the prisoner is desirous of returning to Junee and the opportunity to sentence him in the next month is limited. I felt it was in the interests of justice to treat the matter as a matter of some urgency given his personal circumstances.

46 I would recommend that he be returned to Junee to be close to his family, although of course for a person with his condition Junee gaol is not the ideal environment. I have referred to the fact that this is an offence that has with it a standard non parole period. In this matter of course as I noted earlier, there is a plea of guilty, but the standard non parole period whilst not strictly applicable as discussed in the decision of Way is still a relevant matter in the fixing of the sentence as a guide post or benchmark or indication of the appropriate approach to sentencing for these types of offences in this particular matter. It is to be fairly said the sentence I impose is considerably beneath that of the standard non parole period, but this reflects the discount for the plea of guilty and the finding of special circumstances. The attention I have given to the mental disability or disadvantage of the prisoner is not of such a character as to warrant a sentence of exceptional leniency as would be the case if I gave the prisoner anything less than I have contemplated.

47 In this particular matter having noted all that has been put on behalf of the Crown and the prisoner I make the following orders. You can stand up thank you Mr Scott.

48 In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non parole period of three years and nine months to commence on 30 June 2006 and to expire on 31 March 2010. At the completion of your non parole period you are eligible for release to parole, although I cannot direct it and you will then be required to serve a balance of sentence of three years and nine months which sentence on my calculation should expire on or about the 31 December 2013.

49 In sentencing you to that term of imprisonment I have taken into account the matter on the Form 1 and I recommend on your release to parole that you be subject to the supervision of the Probation and Parole Service and obey all reasonable directions of that Service, particularly in relation to treatment of your medical conditions and relevant counselling.

50 I recommend that the prisoner be permitted to be transferred back to the Junee Gaol at the earliest opportunity.

51 CORR: Just in relation to the dates your Honour for the potential release he starts on 30 June shouldn’t he be available for release on 29 March.

52 HIS HONOUR: As I understand it it is a month by month thing. There are thirty days in June and there are thirty-one days in March. I understand your point. I will make it 29 March 2010.

53 CORR: Also the total one on 29 December 2013.

54 HIS HONOUR: I will make it 29 December 2013.

55 CORR: I may have missed it your Honour or it may be implicit in the judgment but as to the amount of the discount and the starting point is that something which your Honour is required to state in your judgment.

56 HIS HONOUR: I said he got a discount of twenty-five percent.

57 CORR: Sorry your Honour I may have missed that.

58 HIS HONOUR: I’m sure I said that. At the very outset I said he got the maximum discount I think that’s not contested by the crown?

59 CORR: No, it’s not your Honour.

60 HIS HONOUR: The starting point was a total sentence of ten years with a discount it comes down to seven years and six months with the finding of special circumstances the non parole period is three years and nine months.

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