R v Shepherd, Archie
[2009] NSWDC 386
•11 September 2009
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v Shepherd, Archie [2009] NSWDC 386
FILE NUMBER(S):
2008/20326
HEARING DATE(S):
08/09/2009 & 10/09/2009
JUDGMENT DATE:
11 September 2009
PARTIES:
Regina
Archie Allen Shepherd
JUDGMENT OF:
Nicholson SC DCJ
COUNSEL:
Crown: C Simpson
SOLICITORS:
Defence: Mr. W Burton
CATCHWORDS:
Criminal law - sentence - domestic violence - recklessly would girlfriend - sustained assault - fourteen injury sites - use of curtain tubing as weapon to strike victim - purpose of law to protect community including indigenous women in violent domestic relationships - principles in Fernando's case applied..
LEGISLATION CITED:
CASES CITED:
Gladue v The Queen [1999] 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Fernando (1992) 76 A.Crim.R. 58
TEXTS CITED:
DECISION:
Convicted. Sentence to a non-parole period for 18 months to date from the 11th January 2009 and expiring on the 10th July 2010. Balance of term of 19 months to expire on the 10th February 2012.
Section 166 matters:
Assault Occasioning Actual Bodily Harm:Leave granted. to withdraw charge.
Contravene DVO:Pursuant to s.166 Criminal Procedure Act sentenced to 6 months imprisonment to date from the 11th January 2009 and expire on the 10th July 2009.
Apprehended Personal Violence Order. Protected person being Twylla Dutton. Standard conditions apply. Order to expire on the 10th February 2012.
JUDGMENT:
JUDGMENT
Archie Allen Shepherd is clearly very damaged goods packaged in the form a young athletic looking Aboriginal man. His evidence is that he was “raised to be wild”. Since adulthood (2004) he has been in and out of gaol four times. He sees, with some sense of frustration, that if this cycle keeps up he will die in custody. My view is that there is a very real possibility he will be a traumatic death in custody.
On this occasion his offending conduct, to which I shall shortly come, is so serious in its criminality he must spend a substantial period in custody. Archie Shepherd’s personal needs, particularly for psychotherapy and for some form of real personal support outside the gaol system are unlikely to be addressed within the gaol system.
Currently, he is housed in a gaol that appears to offer prisoners little more than a place to play cards and gamble tobacco rations. So far as I can determine none of his other periods in custody offered him any more. He was released from prison on 26 August 2008. Within a month he was on bail charged with an unrelated earlier assault upon the same victim.
By 11 November 2008, less than three months after his last release from gaol he was in custody again this time charged with the most serious offence of personal violence to date. The criminality of that offence is reflected in the charge presently before the Court to which he has pleaded guilty, namely, that between 29 October 2008 and 4 November 2008 at Broken Hill he recklessly wounded Twylla Dutton. There is also a summary charge to be sentenced and another to be withdrawn pursuant to s.166 Criminal Procedure Act .
As sentencing judge it falls to me to resolve a number of competing tensions as I try to determine the appropriate sentence for this offence before this Court committed by this offender harming this victim in this community. See Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to him, subjective matters. The starting point for such assessment requires me to make findings of fact from the evidence before the Court relating to the offence and the offender.
My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The tender of agreed facts does not relieve the judge from his fact finding responsibility it simply limits the material from which those facts may be found. To that extent, if it be the case that the facts as agreed do not reflect the actual events that occurred it must be remembered that the Court can only find facts from the evidence placed before it.
The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, back-up charges brought from the Local Court to be finalised in this Court, whether the offence attracts a standard non-parole period and if so the length of the parole period and finally, of course, the ultimate term of imprisonment or other penalty to be imposed. None of that can be determined until the primary facts are sorted out. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Cuthbert (1967) 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.
From the agreed set of facts that have been tendered I take the following to be established. Twylla Dutton and the offender, Archie Shepherd, had been in a casual boyfriend/girlfriend relationship, although they had known each other for most of their lives. On Friday 31 October 2008, Dutton and Shepherd began drinking VB beer between 9am and 10am at Chelsea Bugmy’s house in Creedy Street, Broken Hill.
Between 9pm and 10pm the victim and offender have attended 89 Creedy Street, Broken Hill. Once inside those premises they walked to a middle bedroom of that house and whilst in that room had consensual sexual intercourse. Shepherd then went to the toilet.
Upon his return he became enraged in relation to an old family feud between their respective families involving, as I understand it, the murder of a relative of Shepherd’s. He started abusing her; calling her a slut, whore and other derogative remarks. He shoved her onto the bed and ripped all her clothing off including her underwear.
He located a piece of curtain tubing approximately 600 to 800 millimetres in length and began using it to assault her around the body numerous times causing immediate pain and bruising. During the assault he stabbed her with the sharp end of the tubing causing a laceration to her left foot and left thigh area causing immediate pain with the wound bleeding. He told her to sit on the corner of the double bed with her legs spread open and to insert the tubing into her vagina. I have no doubt he did not use that language.
She told him she did not want to do this, closed her legs in a cross over fashion tightly so that he would be unable to do this to her. He hit her around the top of the thigh causing pain. He attempted to push the tubing closer to the vagina but she grabbed the tubing and pushed it away from her. This further enraged him, he began to strike her with the tubing around her body causing marks and pain. He bit her on the right thigh just above the right knee leaving an imprinted bite mark on her skin that was visible seven days later when the photographs were taken. He grabbed her left hand placing two of her fingers in his mouth and bit them causing immediate pain. She hit him three or four times with her closed fist attempting, successfully, to free her hand from his mouth.
Ms Dutton told police the assault stopped at sunrise. She was given clothing by him different to the clothing she earlier wore so that they could leave those premises together. They walked towards the police station so he could report on bail in relation to the earlier assault I mentioned upon her. Shepherd attended his bail reporting, once out of the station they walked to 413 William Street Broken Hill. At this address they went to a bedroom and began watching television.
She again asked to be allowed to seek medical assistance as her leg was in pain as was her mouth. She was refused. She fell asleep waking approximately twelve hours later around 8pm on Saturday 1 November. She awoke to soreness to her head and body area. Again, she requested to leave to attend hospital. He threatened to flog her as he had the previous night.
On Sunday, fearing she would be assaulted further she did not attend hospital or the police station to report the matter. On Monday 3 November 2008, she awoke at 413 William Street and was assaulted by his punching her to the mouth area causing the already existing injury on her lip to split and bleed again. The two attended the Centrelink office in Argent Street, Broken Hill so that he could submit a claim form.
It is at this time she informed Shepherd she had an appointment with the office and entered an office area. She then explained to a staff member that she required someone to contact the Aboriginal Health Service so that she could get away from the offender and receive medical treatment for her injuries. The call was made and a short time later she was collected in the rear lane. Whilst this was occurring Shepherd left Centrelink.
Ms Dutton went to Maari Ma Health Clinic and was treated for her injuries including four sutures to her lip area. The expert report makes this comment so far as some of the wounds were concerned:
“The patient had single wounds to her left thigh and dorsum of her left foot. Both were similar in appearance and several days old. They measured approximately one centimetre by a half centimetre and involved epidermal and dermal skin layers. They had purulent ooze and surrounding erythema indicative of infection”.
That’s what happens when you don’t treat your wounds and the infection can lead to all sorts of more serious complications. Having finished with Maari Ma Health Clinic she hid herself with her sister to avoid further contact with the offender.
On Monday 10 November, that is seven days later, she attended Broken Hill Police Station with her sister and reported the matter to police. A comprehensive statement was obtained, photographs obtained and a buccal swab undertaken.
At 9:45am on Tuesday the 11th, Archie Shepherd was arrested at Broken Hill at the police station after he reported on bail. I noted the photos were taken seven or eight days after the assault. They show fourteen injury sites including a semicircular site on the right leg that could only be consistent with a bite. The ill treatment of Ms Dutton continued from the point in time when the offender returned to the bedroom and began abusing her on late 31 October or early 1 November until 3 November 2008.
Archie Shepherd says in evidence, he was thinking of the demise of his young son and took it out upon the complainant. In the agreed facts, it was the violent death of his relative at the hands of some member of the Dutton family. I accept that he may well have been troubled by each of these sad, indeed traumatic events at the time of his offending, but am at a loss to understand the causal link between these terrible memories and his sudden and prolonged assault upon a person who he was in the process of courting.
Objective Criminality
From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of Archie Shepherd. That will be done by comparing objectively the criminality exhibited in this case with criminality of other offences of a similar kind. It is in that way that the objective seriousness of the criminality of this offence can be measured. The objective criminality has an important, indeed the most important, impact upon the sentencing outcome.
It goes without saying that the fundamental right of all citizens is the right to the integrity of their body. Put simply, no one, not even officials of the government such as police or Corrective Service officers have the right to harm anyone without some lawful authority. While that authority may take various forms, absent lawful authority any harm coming to another is viewed as anti social conduct, that is, conduct against society and therefore a breach of the criminal law.
Some Aboriginal men may argue that traditional Aboriginal culture tolerated violence by a man towards his woman. Whatever may be the true position so far as past traditional Aboriginal culture is concerned, the continual and widespread reporting of domestic violence by Aboriginal women makes clear that Aboriginal women are no longer prepared to tolerate a domestic relationship that permits violence towards them, and for my money they are the heroines in this.
In this country whatever past or foreign culture may have permitted, violence within a domestic situation is regarded as a crime subject to the same maximum sentences that crime would carry if committed against other citizens outside the domestic situation. There is no law that says, “If you wound a stranger in a pub with a broken beer bottle the maximum penalty is seven years, but if you wound your partner in the bedroom in the same way, or indeed in other way, the maximum penalty should only be a rap over the knuckles.”
One of the prime purposes of sentencing is the protection of the community. One of the largest groups in our community who are in peril are female partners from abusing male partners. A considerable size or percentage of that group are indigenous women. The law seeks to protect the whole community, it does not distinguish on the basis of gender, ethnicity or colour. Indigenous women are entitled to protection, the law is required to do all it can to progress that protection.
This is an offence where the victim had been personally targeted, unlike say an assault in a pub brawl where a victim is in the wrong place at the wrong time. Twylla Dutton was targeted because of who she was and I think because of what she was to the accused.
As earlier mentioned the wounding occurred against a background of a sustained period of assault and ill treatment. The wounding occurred by use of a weapon, namely, a hollow piece of metal curtain rod. That by comparison with other weapons is not as dangerous as many other weapons but nonetheless it was capable of inflicting pain and wound. The wounding included a laceration to the left foot, to the left thigh; there was a third significant wound to the lip when it was split and she began to bleed again. There is what appears to be another wound to the right inner aspect of the hand close to where the right thumb joins it. There are other sites which look as they also may have been wound sites but I am unable to be satisfied of that beyond reasonable doubt. These wounds are constituted by lacerations rather than stab wounds. They were not life threatening and did not require hospitalisation although did require medical treatment at the Maari ma Primary Health Care Centre including stitching for the lip.
The circumstances in which the wounding occurred were humiliating, demeaning and as to the injuries to the foot and thigh, in an atmosphere heavy with unsavoury and degrading sexual overtones. What aggravates the seriousness of this wounding are the circumstances in which it occurred- ongoing violence and ill treatment of Ms Dutton for a period from late 31 October to 3 November; the fact that he had attacked the same victim on an earlier occasion and was on bail for that offence; and finally, his persistent refusals to allow her out of his sight so she could seek medical attention. For reasons I have given this offence falls only just below a mid-range of seriousness of reckless wounding offences. It will be seen that I have rejected the submission of the prosecution. It is saved from falling into the mid-range by the relatively superficial level of wounding but as I said is aggravated by those features I referred to a moment ago lifting it to a more serious level.
Victim Impact Statement
I have received a victim impact statement from Twylla Dutton. The material contained in the statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in it I recognise they are not opinions of a qualified expert. The victim impact statement coming as it does from the primary victim may if I accept it as reliable provide unsworn evidence as to the facts of the offences and their effect upon her.
The function of statements such as this one is firstly, to give the opportunity of being heard in sentencing proceedings to the victim by publicly identifying the impact of the trauma visited upon her by the actions of this offender. Secondly, to enable the sentence proceedings to assist her as she moves towards some closure of grief, resentment and brooding arising from the criminal conduct of the offender. Thirdly, the victim impact statement contributes to an offender at least hearing at first hand in a calmer atmosphere and perhaps gaining insight into the impact his offending had upon his victim. Finally, it is a constant reminder to judicial officers of trauma that is visited upon ordinary men and women as a result of criminal activity. Twylla Dutton says this in her victim impact statement:
“I am the victim of the acts of violence described in the statement of facts. After I was assaulted I was left with several physical injuries. I had a deep bite mark on my thigh, cuts on my arms, hand and palm, stab wound to the foot and scratches under my arm and chest. I also had a split lip, which needed four stitches. I can see the scar, which reminds me of what happened. After the incident my whole body was battered and sore. I suffered pain and discomfort for several weeks. While most of my physical injuries eventually faded the emotional scars have remained. Sometimes I can’t sleep because I blame myself. I wonder why he did it and all I can do is blame myself. I feel as though I deserved it and that I did something to make him angry. I know this isn’t true but I can’t help feeling like this every now and again. Other times I have nightmares about him and what he did to me. I don’t think I will ever stop being frightened of him.
After the assault I was embarrassed because everyone would stare at me and ask what had happened. They would ask me how he did it or why he did it. It was hard for me because being part of the Aboriginal community means that everyone in the community knows us. I know they make judgments about what happened and I feel like his family will blame me if he goes to gaol. I don't like the attention and I don't like having to explain the situation. Before the incident I was quite social and would happily go out with my friends and cousins. Afterwards while my injuries were still obvious, I would avoid doing these things as I felt embarrassed and guilty. I still feel self-conscious when I am in public even when I am no longer in Broken Hill. These events have also affected my family. I have three children who I did my best to hide to try and hide my injuries from. I hated for them to see the state I was in. I would lie to my daughter and say that I had fallen over when I was drunk or that I had run into a door. You could see the sadness in my daughter’s eyes when she would look at me, she would cuddle me and cry and tell me she loved me. It would make me feel heartbroken because I knew that she knew the truth. My mother also suffered. She worries a lot as she was the one who looked after me when I was injured. She stresses about me and my future. I am sad that she has been affected like this. After the acts of violence occurred, I had to leave Broken Hill. I couldn’t stand having people look at me. It made me feel like I shouldn’t be here in Broken Hill. I took my children to live in Bourke near their father as I wanted to make sure that they were in a stable home. I didn’t want their lives to be affected by all this. I didn’t want them to have to listen to all the talk or be exposed to the court case. While I lived in Bourke, I re-started my relationship with their father but that has since ended because of all of these legal matters. He didn’t like that I was always going to court. I want to live in Broken Hill but I’m afraid of the offender. I fear for my life and I feel like I have no choice but to move. I am really sad because most of my immediate family live in Broken Hill. I have had to leave my mother, stepfather, sisters and some cousins who all live here. I now have to start my life over somewhere else”.
And that concludes the victim impact statement.
Subjective Matters
I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the court some explanation and insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate.
Family Background and Relationship
Archie Shepherd is a single, twenty-six year old Aboriginal man born in Broken Hill. He told the Probation and Parole he was “given away” as a baby by his natural parents. He was raised by a maternal aunt and maternal grandmother. He first met his parents who by this time were separated when he was twelve. His father lives in Sydney, his mother in Darwin. There are occasions in the past four or five years when one or more of the natural parents and he have been in contact. My assessment is that he is really isolated. His maternal aunt died when he was seventeen or eighteen. One of her children whom he regarded as a brother and a person of importance, Bradley Johnson, has moved on. His grandmother lives in Adelaide. He had a son from a prior liaison although it would seem he played little part in the young (aged three or four) boy’s life because of custody and an AVO. He was confronted with the boy’s death whilst the child had been on a dentist’s chair during a dental procedure. At this time he was in custody. His father came from Sydney to bring the news. He was allowed to the funeral. My understanding is the relationship Twylla Dutton had ended with the first assault. As a child he witnessed domestic violence and habitual drunkenness. As best I can tell, he grew up mostly in Wilcannia. He said in evidence he found it hard to behave. “I was reared to be wild”. It seems these words sum up his upbringing.
Education, Skills and Work Experience
His evidence was that although he went to school he mostly wagged. He attended special classes. He repeated classes a couple of times before leaving school at the age of thirteen. It would appear he finished school at the end of year 7. There are notes on his PSR suggesting he may have played rugby league with sufficient skill to be selected for a representative side to play in south Australia. He told Probation and Parole he enjoys painting which he said he was good at. Regrettably I have not seen any of that work. When in the community he has no leisure interests or hobbies. It would appear he keeps fit whilst in custody.
General Health
As far as one can tell, Archie Shepherd is athletically fit. There would not appear to be any physical ailments that would inhibit his rehabilitation.
Mental Health Issues
This is a case in which the court would have been assisted by a full background personality and mental health profile. Without a report it is difficult to assess the effect of the numerous stressors and past dangerous health practices upon this offender’s psychic.
• He was abandoned by both parents shortly after birth in circumstances that have clearly not been satisfactorily explained to him.
• He lost two significant persons at the age of seventeen with the death of his surrogate mother and the departure of Bradley Johnson, a significant person who he respected and I dare say, loved as a brother.
• He lost his first born son suddenly whilst in custody in circumstances of not knowing that boy well, although probably wanting to, and in circumstances where he had no access to the child for most of that boy’s life.
• Two members of his family have been murdered including another aunty.
• He told Probation and Parole he did not believe anyone would miss him if he killed himself and “no-one loves me”. As a young child he experienced levels of violence and other expressions of drunken dis-inhibition, some perhaps not yet revealed.
• He concedes he used to get an adrenalin rush from watching people giving violence to others. My sense is at least superficially, he is not appalled by violence but experiences an emotional high from it. But what is further beneath the surface I cannot say.
• He has abused himself with drugs and petrol to a point of probably acquiring brain damage.
• He has attempted suicide by hanging while under the influence of some substance or other.
• He says he finds it hard to behave when in the community and it would also seem while he is in custody.
• His behaviour with his past two partners appears self- destructive in the extreme and contrary to his need for close personal support. As a matter of some urgency, he should be assessed by Justice Health as to his mental health and personality profiles. If, as I suspect, there are serious deficits in his mental health profile, best they are addressed while he is still relatively young and while he will have some time to serve.
Drugs and Alcohol
Archie Shepherd in his evidence said he was sniffing petrol daily at the age of eleven. However in the Probation and Parole report of February 2008, he said he had started at six. It is more likely that the latter is correct. He told the court it made him feel as though he was in another world. His body would get numb. He would sometimes sniff to the point of being sick.
It was Bradley Johnson who got him off the petrol sniffing which says a lot about Bradley Johnson and a lot about the interaction between Johnson on the one hand and Archie Shepherd on the other. From the evidence it is difficult to determine with precision when that occurred but it is likely to have been between fourteen and sixteen.
He has been smoking cannabis since the age of twelve. He smokes ten cones daily. That level for such a long period must be potentially dangerous. When in the community, he daily consumes alcohol, I suspect most frequently to a point of inebriation. He went to a full-time drug and alcohol rehabilitation centre as part of his bail conditions on one occasion but he says there were no drug and alcohol programmes being conducted there so he left. I note there are no drug and alcohol programmes offered for him at Broken Hill Correctional Centre. It seems management has been unable, or more likely unwilling, to fill a vacancy allocated to the Drug and Alcohol Rehabilitation Services.
Character and Criminal History
Archie Shepherd is a fit young Aboriginal man with serious attitudinal and probably mental health issues. He has been raised in an environment of alcohol and drug related violence both social and domestic. Indeed he described in evidence the difference between Wilcannia and Sydney by noting “They don’t fight in the streets in Sydney”. He had been in and out of gaol during his adult life. On the four occasions he has been in thus far, he has already clocked up more than two and a half years. He seems to have difficulty both in the community and in gaol. Since 2004, he has thirteen disciplinary charges including fighting, intimidation, damaging property and throwing articles, all expressions of anger. As a minor he was charged with being armed with intent to commit an indictable offence and common assault, breaking and entering buildings, car related offending, robbery armed with offensive weapon, further breaking and entering, intimidating police, assault occasioning actual bodily harm and malicious damage. As an adult there are break and enters, malicious damage, common assaults.
Attitude to Offence
He has expressed regret for his offending. He told the court he was very sorry for what he had done. I am satisfied he is deeply troubled by the fact that he is getting into trouble and unable to interact with others without problems. Indeed during the course of his evidence his mood swung from one of open and forthright cooperation and frankness to one of sullen, smouldering anger. In fairness I note there were no outbursts but he returned to the dock in a far more sour mood than when he came from the dock to the witness box. There was nothing aggressive, unfair or harassing about the Crown’s cross-examination that provided any explanation to me, it was simply something that had happened that obviously upset him. In such a person, true insight and meaningfully and personally directed contrition is hard to find. But I do accept that he is certainly troubled by the way things have gone.
Plea
This matter was listed for trial at this sittings. There had already been a trial re the issues although it had not yet reached the jury but not in respect of the charge that Mr Shepherd was arraigned on before me. When offered the recklessly wound charge, he pleaded at the first opportunity. Even so, a jury was summoned for the trial and had to be discharged by the court. The utilitarian value of this plea is therefore compromised, nonetheless there was a value in it and I intend to give a twelve and a half per cent discount on any sentence I otherwise would have set.
Rehabilitation Prospects
Mr Shepherd’s rehabilitation prospects are bleak. I am sad to say. I would assess the likelihood of further offending as high. He has no support within the community and appears to have a capacity to alienate any support he might be likely to receive. He has been raised in the fields of violence, has been damaged by death of persons of importance to him, his recent and remote pasts are sign posted by offences of violence and dishonesty. He abuses drugs and alcohol.
Setting the Sentence
The nature of this offence, that is domestic violence, and his recent past offending, call for weight to be given to general and personal deterrence.
Standard Non-Parole Period
I have assessed the objective criminality as marginally below the mid-range of seriousness. While the offender’s subjective circumstances give some insight into the dynamics of his past life and its subsequent impact upon his behaviour, they do not drive the objective seriousness any higher. This is a case in which the standard non-parole period will not apply. Having said that, I acknowledge that it still has work to do in that it indicates the legislature wants matters such as these dealt with more severely than in the past.
Totality
During the period since his arrest he has served a sentence of five months. But for that sentence, the remainder of his time has been related only to this offence. The Crown submitted, and on reflection I have decided to accept, that an appropriate period of accumulation of that five months sentence is two of those five months.
Special Circumstances
It is appropriate to find special circumstances. This is a case which attracts the principles enunciated in R v Stanley Edward Fernando (1992) 76 A.Crim.R. 58. In particular I note the following:
(a) The same sentencing principles are to be applied in every case regardless of the identity of the particular offender or his membership of an ethnic or other group. But that does not mean that the sentencing court ignores those facts which exist only by reason of the offender’s membership of the Aboriginal community.
(b) The relevance of Aboriginality is not necessarily to mitigate punishment but to explain or throw light on the offence and the circumstances of the offender. Hopefully I have given proper attention to both.
(c) Problems of alcohol abuse and violence go hand in hand with Aboriginal communities and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(d) The court must be careful in pursuit of sentencing policies not to deprive other Aborigines of the protection which it is assumed punishment provides.
(e) In sentencing persons of Aboriginal descent, the court must avoid any hint of racism, paternalism or collective guilt, but assess realistically the objective seriousness of the crime within the local setting and by reference to the particular subjective circumstances in this case of Archie Shepherd.
(f) In sentencing an Aborigine who has come from a deprived background or otherwise disadvantaged by reason or social or economic factors, a lengthy term of imprisonment may be particularly, even unduly harsh when served in an environment which is foreign to him and dominated by inmates and prison officers of European background.
Since those remarks were made by Wood J, more attention in the custodial system has been given to the housing of Aboriginal inmates. Broken Hill, although it is deprived in many ways of resources, it seems to me, at least has a predominance of other Aboriginal men and women within the confines of the prison walls. Wellington and Yetta Dhinnakkal are two other prisons, and I think Tamworth as well, are prisons that have large Aboriginal inmate populations.
(g) It is important to ensure that the punishment fits the crime and not lose sight of the objective seriousness of the offence but full weight must be given to the competing public interests to rehabilitation of the offender and the avoidance of recidivism on his part.
The way in which Wood J approached that problem in Fernando is instructive. His Honour resolved the competing tensions by giving, in Fernando's case, a head sentence of four and a half years with a non-parole of nine months. That mechanism in today’s sentencing regime would require a finding of special circumstances and I intend to do so.
Mr Shepherd would you stand up please.
Archie Shepherd, I convict you of the offence that you between 29 October 2008 and 4 November 2008 at Broken Hill in the State of New South Wales recklessly wounded Twylla Dutton. For that offence but for your plea of guilty I would have set an overall sentence of three and a half years. I have reduced that sentence to three years and one month, that is taking five months off it which is twelve and a half per cent as near as I can go. I sentence you to a non-parole period of eighteen months to date from 11 January 2009 and to expire on 10 July 2010 and a balance of term of nineteen months which goes to 10 February 2012. In respect of the s 166 matters, sequence 2, assault occasioning actual bodily harm, leave is given to the Crown to withdraw that. In respect of the sequence 3, contravene apprehended domestic violence order, you are sentenced to a term of imprisonment of six months to date from 11 January 2009 and to expire on 10 July 2009.
HIS HONOUR: Mr Shepherd because you have been sentenced to a sentence of imprisonment of more than three years, I cannot order your parole. You will have to persuade the Parole board that you are a suitable candidate to be released to parole. That will include persuading them that you have accommodation and persuading them that there is no danger to the community or to yourself when you are released. Do you understand that?
OFFENDER: Yes.
SIMPSON: There should be an automatic non-association order as well your Honour for the period of the sentence so that should expire January 2012.
HIS HONOUR: Apprehended personal violence order--
SIMPSON: Under section 39 your Honour.
HIS HONOUR: There will issue an apprehended personal violence order, with the protected person being Twylla Dutton, in terms of 1 and 2 and to not to approach Twylla Dutton directly or indirectly for a period expiring on 10 February 2012.
LAST UPDATED:
22 June 2010
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