R v Sorenson, Dean

[2010] NSWDC 303

CITATION:	R v Sorenson, Dean [2010] NSWDC 303
JUDGMENT DATE:	10 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted.-Sentenced -non-parole period of 6 years - Balance of term of 4 years.
CATCHWORDS:	Criminal Law - Sentencing - After trial - Malicious Inflict GBH with intent - Standard Non Parole Period Offence - offender and victim long standing friendship - both serious drug abusers - unfounded claim of drug theft by victim - king hit by offender - 3 stomps to head - traumatic deep-seated brain damage - permanent incapacitation - offender aged 33 - single father - drug induced mental health issues - history of minor offending - standard non parole period not applied
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	The Queen v Gladue [1999] 1SCR 688 [80]
PARTIES:	Regina Dean Phillip Sorenson
FILE NUMBER(S):	2009/2530
COUNSEL:	Crown: B Ingram Defence: P Segal

JUDGMENT

1. On the morning of Saturday 10 December 2007 Lucas Cree was reported to Emergency Services as unconscious and desperately injured, particularly to the head. The author of that report was Dean Sorenson.

2. In an interview that afternoon Sorenson told police, question and answer fifty-three,

“We had work - expected to do work with him, (Lucas Cree)at his mum’s house today. So I went back there this morning. I called out. Got someone to buzz me in because he didn’t answer. I went up...I went up and opened the screen door, pushed the door and then I seen him. And then I pushed my way in... I called the ambulance and they told me to put him on his side and I put him on his side, and they just told me to tilt his head back, and they asked me if he was breathing, ‘Is he breathing?’ But first he was gargling when he was on his back... I started to cry because I could see his face...”

In the same interview, question and answer 188, he told police:

“I just seen his face all puffed up and blood all over his face and all over... the wall. There was dry blood here, going down here, but here on his face was like fresh blood coming out of his face, and when I pushed him on his side as the ambulance said he, like, urinated on the wall.”

In the same interview, question and answer 221:

“His face was all puffed and his eye, I think there was something wrong with his eye because there was blood coming because when he was on his side there was blood coming out of his eye. His eye was - his face was all puffed up.”

He denied attacking Lucas Cree, saying in answer to a question:

“Q. When he started abusing you and being rude, did you argue back with him?
A. I was like ‘Come on, man. Look, you’re just fishing for an argument.’ Like, you know, just trying to, like, talk my way out of it because I was drunk too, but I know that what he’s trying to do, he’s trying to press my buttons but I’ve done anger management and I know how to deal with things like that...so I just brushed it off.”

As to Dean Sorenson’s relationship with Lucas Cree, at question and answer 207, he said, “I was all panicky and I didn’t like to see my mate like that. He’s like my brother.” At 216, “I was telling him, ‘Luke, are you all right, buddy? Are you all right? Are you all right, buddy? What happened?’”

3. A little further into the interview he says, “I consider him my brother and he considers me his little brother because he’s five years older than me.” However in a telephone call to one of his friends on 23 May 2008 he said:

“Yeah, I punched the poofter cunt once, bro, knocked him clean out...hey, look, hey, all it took was one king hit for me...for me to knock clean, I’m telling you, clean out on the floor. Fucking gone. I’m telling you this, cunt, I walked away and I sat there for fucking three minutes thinking fuck, what do I do? I’m going to fuck this cunt up, that’s what I’m thinking...I king hit him. Walked away, I sat down on the lounge. I see him knocked down on the floor. I walked up, I couldn’t help it. I just stomped on the head three times, bro.”

Dean Sorenson was arraigned before a jury panel. He pleaded not guilty to two charges, the first being that on about 9 November 2007, at Cabramatta, he maliciously inflicted grievous bodily harm to Lucas Cree, with intent to do grievous bodily harm. There was an alternate count that the jury did not consider, namely that at about 9 November 2007, at Cabramatta, he recklessly inflicted grievous bodily harm to Lucas Cree.

4. After a fourteen day trial [conducted by another Crown prosecutor] his jury found him guilty of the first count in the indictment. Today he is to be held accountable for his criminal conduct. As sentencing judge it falls to me to resolve a number of competing tensions, as I strive to determine the appropriate sentence for this offence before this court, committed by this offender harming this victim in this community; The Queen v Gladue [1999] 1SCR 688 [80].

5. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to the offender, called subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the court relating to the offence and to the offender. My fact finding task necessarily requires me to find facts consistent with and reflective of the jury’s verdict. There is no obligation to find facts at either extreme or favourability or unfavourability to the accused.

6. It is clear that the jury, by its verdict not only rejected the accused’s defence but was satisfied beyond reasonable doubt that he was armed with an intention to do grievous bodily harm when he did it.

7. 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 technical questions relating to deterrence, whether special circumstances are to be found, whether this offence attracts a standard non-parole period, the length of the parole period and of course the ultimate term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined.

8. Dean Sorenson and Lucas Cree have been friends and associates for many years, at very least it would seem twenty-five. Both had serious unresolved drug and alcohol issues. As is frequently the case, an important plank in their friendship was their mutual drug and alcohol abuse and the self-destructive support each gave to the other in pursuit of their debilitating and dehumanising addictions.

9. Cree lived alone in a third floor apartment in Hugh Street, Parramatta. Sorenson was a frequenter of the apartment, which included overnight stays with Cree. There is nothing in the evidence that suggests Friday, 9 November 2007 did not start out as a normal day in the lives of both these men. The afternoon of the day was spent by both together, obtaining alcohol and valium tablets to be consumed that night at Cree’s flat. Some time between, as best I can determine, 5pm and 6.45pm an altercation occurred between Sorenson and Cree. It is beyond all doubt that Sorenson was the aggressor from start through to the altercation’s terrible conclusion.

10. I will in a moment deal with the course of the altercation. I turn now, however, to examine Sorenson’s motive. Sorenson’s defence was that his level of inebriation was such that he could not form the specific intent necessary to have proved against him the intent to do grievous bodily harm. Called in the defence case to prove this proposition was Dr Furst, a psychiatrist. This was frankly not a matter that the defence had to prove, but rather the Crown had to prove beyond reasonable doubt the intent to do grievous bodily harm. Nonetheless Dr Furst was called.

11. The history taken by Dr Furst centred around a delusional belief entertained by Sorenson that Cree was having sexual connection with Sorenson’s ex-partner, and earlier that day had obtained a green substance from a telegraph pole which had been placed in the food that Luke Cree cooked for them both that evening. It was the defence case that Sorenson had confronted the hapless Cree with these issues prior to physical confrontation commencing, and that once it had commenced he was unable to form the specific intent necessary to establish that he had an intent to do grievous bodily harm.

12. The accused gave an account in evidence consistent with the delusional beliefs version given to Dr Furst. The jury rejected his claim of extreme inebriation and, incidentally, of entertaining the claimed paranoid belief. It is easy to understand why it did so. There is no mention of the paranoid beliefs in any of the intercepted phone calls when the topic of assault upon Lucas Cree was discussed. Of course he said nothing to the police about it in the interview conducted on the day following the incident or even in the second interview. Secondly, the intercepted conversations give a much more gruesome and malice laden account of his role in the assault than did his evidence or his account to police.

13. Finally, there was evidence of motive coming from one of the neighbours. Ms McCall, Cree’s next-door neighbour, put an argument as occurring the night before she spoke to a female constable. The Crown’s recitation of facts proved beyond reasonable doubt, which was submitted as the facts that the Crown suggested I should find and not really disputed, in fact not disputed by the defence, covers this material at para 7:

“Tracy McCall, who lived at unit 20, heard an argument between the offender and the victim around early November 2007. She heard the offender say, ‘Where’s my effin’ gear. I know you took it.’”

She also heard the victim say, “Don’t you remember? You had a shot in the bathroom about 3am.” She said the victim and the offender continued to argue and she heard the offender say, “If you want me to get effin’ out, you’ll have to call the effin’ police. You’ve got an hour to get my gear, you cunt.”

14. Having heard this conversation, she rang her mother and went to her mother’s place for four to five hours, and arrived home at about 10.30pm. The argument that had caused her to leave home, she said, went on for some seven minutes or so. Ms McCall was however a witness who, while truthful, had difficulty accurately honing into times and dates. Her evidence is useful as to an insight into one aspect of the dynamics of Sorenson’s relationship with Lucas Cree. It may also have served to give the jury a motive.

15. The competing account provided by Sorenson is not supported by McCall, who spoke to police the day following the assault, nor is it supported by Wandee Sae-Eng, who gave this account. She lived in Unit 17. She was in her lounge room reading a book on 9 November 2007. Somewhere about 5 and 6pm she heard noises upstairs and an “Ow, ow” sound. She heard the sound more than once and it disturbed her sufficiently that she wandered out to see if she could see what was going on. She was unable to determine anything really and she said that she heard noises like someone falling down.

16. The jury in convicting Dean Sorenson of the principal charge has rejected his account and Dr Furst’s expert evidence based upon that account. In the absence of any supporting evidence for his account and the fact that the presence of the evidence before the court throws serious doubt upon it, I reject his account of having paranoid delusional thoughts about Cree’s sex life and Cree’s poisoning of the food as motives for his argument with Cree.

17. The account Sorenson gives to Bob Nyitrai on 23 May 2008, referred to at the commencement of these remarks, has the ring of truth about it. Nothing in that account suggests delusional beliefs. I am satisfied there was an argument in which Sorenson felt aggrieved. Sorenson had anger management issues. This was a case in which he lost his temper, king hit Cree, knocking him to the floor.

18. Photo 11 of Exhibit E appears to show two discrete areas of impact spatter consistent with high velocity impact, causing the blood to smash against the wall, one originating close to the measuring tape and the other spreading above a large patch of blood on the wall, to the right of the tape, at about twenty centimetres from the floor. This patch would suggest Cree’s head, matted with blood through the hair, was at some time resting against that spot in the wall. Significantly some spatter appears to have travelled nearly half a metre in the air to reach the wall.

19. There also appears to be three areas of blood pooling on the carpet visible on photo eight of Exhibit E, consistent with the area of principal bleeding moving three times. Sorenson admits to returning to Cree after a few minutes contemplation on the couch and stomping on his head three times.

20. I can see clear evidence of spatter consistent with two stomps and other blood patterns that I cannot readily understand without expert evidence. I am prepared to accept his admission against interest of three stomps as being accurate, if I accept the first stomp was sufficient to open the skin and commence the flow of blood revealed in the other two.

21. The couch was left in disarray. It was claimed by Sorenson the TV had been moved. Whether that arises from Sorenson seeking to make the room look as though an intruder had come in, or he was taking something beneath the cushions or some other explanation remains a mystery. As to the TV, I suspect that the jury studying Exhibit D would accept that the angle of the TV was consistent with someone seated at the head of the dining room table, being able to view the TV from there. I do not regard Luke Cree as ever having regained his feet after the initial knockdown blow occasioned by Sorenson. I do not regard him as responsible for any of the disarray of the lounge room relied upon by the defence. In all probability the TV was moved by Cree before the altercation and possibly even before that night.

22. There are numerous phone contacts that occur between the offender and Bob Nyitrai and Tony Burburan. There are five such contacts between 4.29 and 4.58, the longest being an eighteen minute call to Nyitrai. I have no reason on the evidence before me to regard any of these calls as incriminating. These contacts occurred before the assault. There is a gap of two hours and then between 6.50pm and 7.25pm there are seven further contacts. Between 7.25 and 11.16 there appears to be sustained contact from Sorenson to, I think it is, Bob Nyitrai. These calls fix the time of realisation by the offender of the parlous situation he was now in, as a consequence of his unbridled anger outburst, at 6.50pm.

23. There are a series of SMSs to Burburan’s phone at 4.13am which were related to seeking travel assistance, as the offender sought to distance himself from the serious criminal conduct he had so recently been involved in. The dispatch of the SMS to Nyitrai seems to provoke an immediate call back from Nyitrai.

24. Sorenson left the premises as best I can glean around 7am. On this evidence Tracy McCall seems sound. He took the opportunity of removing any evidence that incriminated him personally. He returned more than two and a half hours later to begin the charade of discovering an injured friend.

25. During his conversations with Nyitrai and his text messages to Burburan the question of obtaining medical help for the unconscious and agitated Cree must have come up. I am satisfied Sorenson made or participated in the making of a decision not to call for immediate help, or as time passed for help because to do so without first leaving the premises would result in incriminating evidence against him being found.

26. For the purposes of sentencing, however, I have regarded the criminal conduct of the assault charged as completed after the stomping. It may be that the offender’s decision to report Cree’s injury to emergency services several hours later exacerbated the actual GBH that already was occasioned by his physical assault upon Cree.

27. For the purposes of sentencing, however, the failure to report is evidence limited to evidence supportive of an intent to do grievous bodily harm, as evidence of a lingering of malice towards Cree and strong evidence of an absence of remorse during those crucial hours.

28. The injuries are set out in paragraphs seventeen and eighteen of the Crown’s submission. In respect of statement of facts (as said, see “Facts proved beyond reasonable doubt), I take the injuries with one small amendment from them.

17. Dr Catherine Cartwright described the injuries of the victim [on arrival at the hospital]. She stated that the victim had sustained a right sided three centimetre face laceration near his eye. A CT scan revealed a five millimetre right frontal subdural haematoma with mass effect and a two millimetre midline shift [of the brain from its usual position]. This means that bleeding was occurring between the lining of the brain and the surface of the brain. The bleeding was causing pressure and movement of the brain, therefore from the middle of the brain there was enough pressure to push the middle of the brain across to the other side. This pressure would have resulted from a high velocity type force from the front and side of the right side of the head. The swelling was related in part to the impact and in part to the medical operation. Dr Cartwright formed the opinion that the injury sustained was serious and potentially life threatening and “could be consistent with an alleged assault.”

18. Dr Adrianne Hodgkinson gave evidence that the victim was managed in intensive care and transferred to the brain rehabilitation unit at Liverpool Hospital. She stated that the victim had sustained a traumatic brain injury resulting in permanent cognitive and physical impairments. At August 2008 he remained dependent on others for personal care and required assistance in mobility indefinitely. Dr Hodgkinson has been seeing the victim since August of 2008 as an outpatient. The victim was seen by Dr Hodgkinson on 11 May 2010. He was observed to have dysarthria being slurred speech and word finding problems. The doctor was of opinion that the victim continues to have severe cognitive impairments which affect his ability to remember events with any detail or time frame. The victim’s expression is limited to simple phrases and he remains unfit to give evidence in court.

29. Returning to the issue of causation, I should make clear if I have not already done so, that I do not regard the offender’s mental health issues as playing any part in his decision to “king hit” and some minutes later to stomp upon Cree’s head. His substantial ingestion of drugs and alcohol may well have increased his disinhibition, impairment of judgment and his sense of aggression. However, his high level of tolerance to the drugs and alcohol was such that his assessment of right and wrong was not impaired, nor was, subject to the comments I have made above, his capacity to form a specific intent impaired, particularly in circumstances where he contemplated for some time what he would do once he had king hit Cree. I note both these findings are consistent with the jury’s verdict.

30. 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 conduct of the offender. This is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence is evaluated. Not surprisingly objective criminality has an important impact, in fact the most important impact, upon the overall sentencing outcome.

31. This offence is one of the most serious offences of assault in the criminal calendar. It is worth pausing for a minute to understand what is obvious to most why an assault upon another is criminal conduct. Each person is entitled to the physical integrity of his or her body. Those who without consent or lawful excuse intrude upon that physical integrity are behaving antisocially. When injury is occasioned the antisocial conduct is of a higher order. The greater the injury, the greater the consequence of the antisocial conduct. When the antisocial conduct is harnessed to a malicious intent to cause really serious injury, then the conduct amounts to antisocial conduct of a very high order. The State regards any unlawful assault upon a person, that is that sort of antisocial conduct, as amounting to criminal conduct. That is conduct that merits punishment by the State. In this case of maliciously inflict grievous bodily harm with intent to cause really serious harm, the State says that in a worst case it merits a maximum of twenty-five years in prison and seven years non-parole for a case falling within the mid range of objective seriousness.

32. From the findings of fact I have made the following observations as to objective seriousness can be made. Sorenson was the aggressor throughout, first in the verbal confrontation that took place and the physical assault that followed. What motivated his anger is unclear, but it had nothing to do with his former partner and Cree’s dealings with her, nor did it have anything to do with a belief of being poisoned, nor was it founded upon a delusional belief of wrongdoing by Cree. In so saying it should not be thought I am excluding a mistaken belief, that is a factual error that can occur among all of us from time to time including among those of us who are not mentally ill.

33. The description of a “king hit” connotes Cree was unprepared for the blow, was not anticipating a physical attack and so the hit was able to become classic or as he describes it a king hit. There is nothing to suggest the attack was from behind, it may well have been from the side. I have tried to determine why it was that Cree was in the hallway when struck. It seems logical, but I cannot for certain say, that the force of the blow drove his torso towards the lounge room while his feet remained relatively close to the door. It seems logical that he fell away from the offender who struck him with a king hit, who on that scenario would seem to be closer to the door. I am satisfied Cree was not dragged to the position he was in when emergency services arrived.

34. The malice associated with a king hit on an unprepared or unsuspecting victim is greater than when he anticipates the blow. That is because the victim’s vulnerability is greater when he is unprepared or unsuspecting. At very least assault occasioning actual bodily harm was occasioned from the blow because it appears that blow caused a loss of consciousness. The offender’s move back to the couch with a prostrate Cree in the hallway. The offender’s anger was unrequited, more was required. Injury had already been occasioned but that injury did not quench his anger. The criminal intent was not just more serious injury, the criminal intent was really serious injury was needed before this anger he was experiencing could be satisfied.

35. Six months after the event his anger can still be captured on the phone:

“I punched the poofter cunt once, knocked him clean out. I started thinking fuck what do I do? I’m going to fuck this cunt up...I just stomped on his head three times.”

36. To hear the words there is to recognise the callous, vicious and ruthless level of antisocial conduct that was intended and executed. So stated that was criminal conduct of a high order. The injury sustained was life altering, traumatic brain injury.

37. I should note upon arrival at hospital, the injuries were regarded as serious and potentially life threatening. He required hospitalisation for months, that includes intensive care for many weeks. He required a tracheotomy, a peg tube for feeding, fifteen months in the brain injury unit once he had graduated from hospital and once he had graduated from the brain injury unit thereafter in a respite care facility where he can be given full-time care. Respite care facility means that notionally he is only supposed to be there for a short period. The difficulty is of course that he is a young man and the only facilities that are usually available for people in this condition are senior age nursing homes. Consequently he resides at respite care rather than at a permanent home.

38. The expert evidence of his personal disabilities is sparse. Permanent, cognitive and physical impairments, slurred speech, word finding problems, expression limited to simple phrases, severe cognitive impairments, impaired memory.

39. There was no level of planning, the king hit was impulsive. That must be so because Cree did not expect it. The stomping, while not planned in the sense of being premeditated before the king hit, was certainly contemplated and the best that can be said of it from the offender’s point of view is that it was “opportunistic”. Of course the obverse side of that is that it was only opportunistic because the victim was prostrate on the floor in his most vulnerable position, that is, unconscious.

40. On subjective features this is not a worse case, but it falls above and outside the mid range of seriousness. Features which lift it to above the mid range are the permanent and catastrophic harm done to Luke Cree and the evil deliberateness and ferocity of each of the three stomps that were inflicted.

41. I have received a victim impact statement from Mrs Cree, Charmaine Cree. The material contained in the victim impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement I recognised they are not opinions of a qualified expert. The victim impact statement may, if I accept it as reliable, provide unsworn evidence as to facts of the offence and their effect upon Lucas Cree.

42. The function of statements such as this one, is firstly to give victims, or in this case (probably also a secondary victim), an opportunity of being heard in sentencing proceedings by identifying publicly the impact of the trauma visited upon them by the actions of an offender. Secondly, it enables sentencing proceedings to assist victims, although perhaps not in this case Lucas Cree but certainly hopefully his mother as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender.

43. Thirdly, the victim impact statement contributes to an offender hearing first hand and perhaps gaining insight into the impact his offending conduct had upon his victim.

44. Finally, a victim impact statement reminds judges such as myself, or judicial officers such as myself, of the impact criminal conduct can have upon the ordinary men and women who are its victims.

45. Ms Cree has written a very full and detailed account of how the criminal conduct impacted upon Lucas Cree, herself and Lucas’s siblings. I have read it carefully several times. In these sentencing proceedings it is not possible to read the whole statement out in full. In a perfect world I could do so, it is lucid, cogent and powerful. What I seek to do however is to highlight those portions of the statement that get insight into the impact of the offence particularly upon Lucas Cree.

“I Charmaine Rosa Cree am writing this impact statement on behalf of my son Lucas Aaron Cree. Lucas has given me permission to say exactly how he feels and does not object to this statement being read in court.

I can remember so vividly three years ago Lucas and I sitting and talking about his future. Finally his life was on the right track. He had his own unit that he loved and he really was ready to move forward with his life.

Lucas was not an academic like my other sons, however he possessed skills they did not have. In a lot of ways he was so much like me. We discussed his doing a TAFE in signwriting or visual arts. He was quite talented in that area. He loved riding his pushbike and used to build bikes for kids out of parts found in thrown out cleanups. He did join the local library and enjoyed reading. He had a great sense of humour and was actually a very caring person.

The injuries caused to my son on that fateful day in November of 2007 will remain with him forever. When Lucas was taken to hospital they rang me, I rushed straight there. I could not believe that my son was lying there in the emergency room. He looked like he had been hit by a truck. The skin was off from most of the right side of his face. It was so swollen and the blood was everywhere, I almost did not recognise him. He had already had scans done and they told me that they were taking him to surgery as he was bleeding into the brain.

They did not know if he would live or what the damage would be. After the operation Lucas went into intensive care where he was kept alive on life support machines. He remained in intensive care for many many weeks. They had to perform a tracheotomy so he could breathe more easily.

Every time I saw Lucas there was very little change. My sister suggested I keep a diary of Lucas’s progress which I did. An entry from my diary dated 4 January 2008, ‘Arrived at the hospital at about 10.30am. After I had left yesterday I went shopping and bought Lucas some new pyjamas and a few white T-shirts. I bought him some deodorant and some room freshener for people with allergies and some baby powder. When I arrived I noticed straightaway that his trachea tube had been removed. The nurse told me he could speak if he can and to let her know what he says. I talked to him and asked him to talk to me. He just gives me a cheeky grin, he frowns and then I realise he has soiled himself. I asked the nurse to help, since she is the only one available, I had to help her change him. We change his linen as well. I tried to put his pyjamas on but it is too hard so I just put the hospital gown on instead and put his pyjama pants on over his pad. I keep begging him to talk to me and finally he says, (and it’s spelt m-u-m, suggesting mum). I feel over the moon, another half hour of his cheeky grins and my constant badgering him. Finally he tells me he loves me after being prompted.’

On 13 January next year 2008 Lucas was transferred to the brain injury unit at Liverpool Hospital where he remained for the next fifteen months. During this period he learnt to sit, eat and drink through a straw.”

46. I come to another entry on the diary of Thursday 7, I take it of January 2008:

“Teeno the social worker came to get me. After a meeting had been arranged with Dr Veeravangesa to explain to me the different stages that Lucas would go through. I asked many questions, one was why was Lucas having trouble with his vision? He explained that the brain injury plus the multiple face fractures would have caused this.”

There is a further diary entry dated 1 March, 2008.

“Today when I saw Lucas he seemed agitated, he raised his voice and swore. I think he may be coming out of the amnesia period and into the next stage. He told me he was going to be married today. He is still confused, he says such funny things. I cut his toenails (and then she observes and it is not really part of the impact), I need to get better clippers because his toenails are so thick.

Lucas virtually has no life, although a lot of his intelligence is there, there is a simplicity about him now. His eyesight is very poor due to his injuries so he cannot read. He finds it difficult to talk, he speaks in a monotone voice and only enough that he can say as much as one breath allows him. When he speaks he often repeats the same word several times, because he has to think about what word to use. He has to put a paragraph of words into one sentence. This makes him so frustrated because he wants to tell me everything. Every time I see him he tells me the same things. He repeats stories over and over. I keep telling him that he has already told me that and he just replies ‘oh’.

Lucas has no independence at all, he has an inability to negotiate simple day to day tasks. He is totally dependent on someone else to get him a glass of water, take him to the toilet and prepare food for him. He has no choice as to what he eats or when. He has been put on a diet because he has gained weight. Lucas’s left side of his body has been damaged due to the injury. He has almost no control over his left arm. His left leg is also very weak. With help he can stand and with his large walking frame that has arm rests, Lucas can walk a short distance such as from a bedroom to a toilet but only with assistance. He tends to veer to the left and has to be corrected, he has no balance whatsoever.

His mind is reasonably alert which makes matters worse, however he gets very, very bored, he has virtually no choices in his life now. Sometimes he becomes very depressed and frustrated. He wants to get angry but even that is denied because like a child he gets into trouble. He feels very alone and vulnerable, he has expressed a desire to end his life, but he has no means to do it.

He told me he would rather spend the rest of his life in prison rather than being like this. He does not like to be taken out much because he says people stare at him. My sister takes him to church every Sunday evening, this he loves because he says there are people who talk to him like he is not stupid.

Lucas remembers what it was like to go where he wanted, do what he wanted, to be able to make his own choices about his life. ‘Mum I have no life anymore.’ I am tired of crying when Lucas asks me please take me home, I am tired of trying to make Lucas’s money stretch. Respite care takes three-quarters of his pension just for accommodation. With what is left he pays taxi fares to doctor’s appointments, clothes, toiletries, chemist pills for all the medication he is now on, DVD, haircuts, et cetera. I have constant battles with the powers that be to have Lucas placed in young people in care facility instead of the aged care nursing home.

My son will never be who he was meant to be. He is forever trapped in a body that denies him the ability to be normal. He will never marry, he will never be a father and he will never swim in the ocean or even walk through a puddle. The sad thing is I will die before Lucas and he depends so much on me. The death of his grandmother last year devastated him. Not many people visit Lucas anymore it’s just too hard for them.”

47. That ends the victim impact statement reading the portions of the victim impact statement that I am going to read.

48. I turn now to the subjective factors, 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 others who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation, an insight into the commission of this offence by him, or some reason one or more or less sentencing outcome is appropriate.

49. Dean Sorenson is a single man aged thirty at the time of offending and thirty-three at the time of sentence. He has an elder sister, his father had alcohol issues when the offender was young and was only available to his children a few times each year. He and the offender’s mother were separated. While there is now contact with the father Probation and Parole report that the relationship has not yet healed completely.

50. It would seem the offender harbours anger and/or resentment at the substantial loss of access to a father denied to him during childhood. He was brought up by his mother and older sister. The mother was employed by a supermarket. His sister is an aged care nurse. There is a six-year-old son Shannon. The offender has one relationship, that being Shannon’s mother. She developed schizophrenia. He has been raised, that is Shannon has been raised, by the paternal grandmother since eleven months old due to the offender’s issue with substance abuse and mental health issues.

51. The child’s mother is equally unable to raise the child. As so frequently happens to offenders in custody, the absence of access to the child becomes far more poignant and emotionally debilitating than it was when the offender was free. While I do not doubt the strength of feeling of loss experienced by the offender whilst in custody and that the feeling of loss is currently driving a determination to be a better father when released, I am far from confident his release will bring about that consequence. I know that he speaks to his son over the phone but thus far and perhaps for good reason the mother has not brought the child to the prison for visits.

52. Sorenson’s main income stream while he was in the community was a disability support pension and he had not been in paid employment for a number of years, probably since 2002. I should note the exception to this is that during his custody he has been employed in the carpentry shop.

Exhibited is a payslip. If I have understood it correctly, he appears to have been paid a miserable forty dollars for seventy hours of work in the week ending 30 June 2010. It would appear he may be able to supplement that by selling finished woodcraft items privately produced. Photos of two such items made by him were exhibited. One is a chess board built upon a storage compartment for the chess pieces. The inlay and other woodwork shows considerable skill. The other is a pendulum clock made from a layer of a tree stump with polished brass numbers and handles. Again it presents as an item of some artistic and woodcraft quality. Clearly he has skills in that area. His value as an employee of the carpentry shop was supported by a letter from his supervisor there.

53. He has poor literary skills. He attended the local primary school, had reading difficulties. He went to Canterbury High School until expelled from there and on to Ashfield Boys High School where he left some time in Year 10. Whilst in custody he has done a three or four session anger management course (eight hours), an Alcohol and Other Drug Awareness Program, and two components of a Certificate 1 course in Access to Work Training. It should not be thought for a moment that a three session anger management course or the Alcohol and Other Drug Awareness Program, which I think was four sessions, making a total of eight hours, will be enough to deal with his anger management or alcohol and drug issues, given that they are so entrenched.

54. So far as one can tell he has no physical health issues that would diminish or impede his rehabilitation prospects. Drugs and alcohol are a real health issue. The offender was seen by Dr Olav Nielssen, retained by the defence, who took a history of substance abuse which can usefully be set out here:

“Mr Sorenson said he began using cannabis as a teenager and used it regularly during his late teenage years. He said that after he began using heroin at around the age of nineteen or twenty, he preferred to spend his money on that drug and stopped smoking cannabis although he said he would use cannabis when it was available.

He reported a period of heroin dependence of several years which he brought under control by enrolling in a methadone program, initially at a moderate dose of 120 milligrams per day, subsequently reduced to a relative low dose of 70 milligrams per day. He said that he stopped taking methadone when his drug dependence was raised against him in a Family Court matter but instead switched to amphetamine which has been his main drug of abuse. He said that complications of the drug included severe weight loss and psychotic illness. He said that he weighed 58 kilograms at the time of his admission to St Vincent’s Hospital, (which I think was about three months prior to this event.)

Mr Sorenson reported some abuse of benzodiazepine or anxiety relieving sedative medications such as diazepam to help fall asleep after using amphetamines. He said that he spent most of his money on drugs over the years and confirmed that he maintained his drug use by stealing and selling cannabis when he was younger.”

He began abusing alcohol at the age of sixteen. At the time of his offending he was drinking alcohol daily and all day. He was occasionally using heroin. For example, he claimed to have used heroin after the first interview with police. He claims not to have slept for the prior six days before the offence, consistent with amphetamine use. He says he injected four points of Ice in the early AM, shared 2 four-litre wine casks through the day with Cree and shared 50 Valium tablets obtained from a chemist earlier that day by Cree. He is a long term and seriously entrenched poly-drug and alcohol abuser and concedes that he is so committed to his addiction, that he is willing to commit criminal offending to sustain his use of illicit and prescribed medication.

55. He claims for the two years he has been on remand, he has been drug free. That claim is not challenged by the Crown and appears to have some support by the absence of relevant charges on the Corrective Services custodial record. Probably arising from his alcohol and drug abuse are serious mental health issues. He seems to admit so much to Dr Nielssen. While I have no doubt the issues have been overplayed to some extent during the period between arrest and trial, his mental health issues pose real problems for his hoped-for rehabilitation.

56. In assessing the psychiatric evidence, I am mindful of an attitude revealed in the telephone intercepts. No doubt the jury was equally mindful. Taken from a telephone call of 1 May 2008 at 14.18.53, voice, not the offender’s:

“He reckons the coppers won’t charge you because you’re a mentally disabled person. You are not fucking all there. You are not the full quid or some shit...”

Some three pages over, the offender:

“And they say they’re not going to charge me? ...cause if they fuckin--

Of course they will mate.

They’ll put me in a fucking mental hospital or something.”

Telephone call on 7 August 2008:

“They’ve got me fucking malicious grievance (sic) bodily harm with intent to cause serious injury...I want to try and get the malicious fucking and the intent dropped because I was off my face when it happened. I can’t even - I don’t even remember what it was about.”

57. I have reviewed earlier my finding that the history given by the offender in respect of the delusional beliefs was fabricated. Thus the psychiatric reports tendered must be viewed with some caution making allowance for the extent they depended upon that false history. Even so, the longitudinal history reviewed by Dr Furst establishes long-term psychiatric problems dating back to February of 2002 with a provisional diagnosis of schizophrenia being made. The offender claims mental health issues during his interview with police. He has a disability support pension which I understand has been granted to him on the basis of mental health issues. Such a disability support pension would need to be supported by medical opinion.

58. His mental health issues are one factor underpinning his loss of custody of his son. Since his return to custody, his condition is being managed with anti-psychotic and anti-depressant drugs, all of which is consistent with him having serious mental health issues.

59. This offender presents as a thirty-three year old single man who has had serious drug and alcohol issues, long term mental health issues, long term unemployment. This offence before the court is far and away the most serious offence he has ever committed. To date, all of his offending has been before the local court. There are other episodes of violence, Assault, that is, common assault, assault officers in execution of duty, intimidate police, contravene apprehended domestic violence order. In August of 2007 he was given a 100 hour community service order. This offence occurred during the currency of that community service order. I regard the offence, occurring during a period of a supervised order of the court, as an aggravating feature. I also note there is one offence contrary to what was said in his pre-sentence report and recorded on his custody record indicating, as I remember it, a forty-two day period either off-buying or off-privileges.

60. It is obvious from my remarks that I have come to the view this offender failed to demonstrate any compassion, empathy for his victim or remorse for his actions on the day following his offending conduct or indeed for the months following it. His friend of twenty-five years took second place to his own desires not to be held accountable. Conversations with his peers demonstrate the insincerity of his claims of concern to the police during his interviews. His refusal to acknowledge his specific intent in telephone calls demonstrates a lack of insight into his offending. He has made the same claims in evidence before me that he made to the police.

61. Of course he wishes Luke Cree had not been catastrophically disabled, but Luke’s misfortune is not one he wishes to be held accountable for. Contrition in law requires more than a simple regret at a victim’s misfortune, it requires a willingness to be held accountable for it, to be complete contrition. In that sense then, there is an absence of full contrition.

62. I have assessed the objective criminality of this offence as falling outside and above the mid-range of seriousness. There were two bases upon which I regarded the offence as superseding the mid-range. Catastrophic harm done, by catastrophic I include of course the permanent nature of it and the evil deliberateness of and ferocity of each of the three stomps. As to other matters set out in the checklist 21A(2) I find only the breach of conditional liberty as an aggravating factor.

63. As to the mitigating matters, I find the offender was not fully aware of the consequences of his acts because of his disability. The disability I refer to here is the state of his inebriation. I do not regard his prospects of rehabilitation as being good. Indeed if past conduct is a predictor of future conduct, his recent past abuse of drugs and alcohol whilst in the community, up to the gaol door, together with his lack of insight into his offending conduct, point towards a resumption of drug and alcohol abuse, if not immediately upon his release, certainly shortly thereafter. These are factors that have played some part in his past offending criminal conduct.

64. In addition to the aggravating and mitigating factors set out in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 the court when considering this question is required to take into account any other objective or subjective factor that affects the relative seriousness of the offence. One such subjective factor is Dean Sorenson’s mental health issues. They have been referred to in my remarks. The Crown (as said) has argued that Hamid requires four factors to be considered:

• Moral culpability
• General deterrence
• Whether prison is the more onerous because of the mental illness
• Lingering dangerousness

65. The moral culpability issue has been addressed as part of the objective criminality. I have found it to be high, consequently moral culpability has already played its part in the assessment of criminality. When determining subjective issues such as s 21A(1) permits it is not appropriate to double-count moral culpability.

66. General deterrence has long been regarded as a matter which should be given less weight when sentencing those experiencing serious mental health issues. I regard this offender’s mental health issues as disabling and therefore serious. My finding of fact is supported by the fact he was on a disability pension. The fact that the legislature did not adumbrate mental health impairment as a mitigating factor in s 21A(3), suggests the seven year standard non-parole period is weighted with general deterrence playing a significant role. If that is so, mental health as a subjective factor, provides a basis for determining that a standard non-parole period would not apply.

67. Whether prison becomes more onerous is next to be considered. This offender presents as perseverating on the issue of access to his child. Whether that perseveration is related to his mental illness has not been established in evidence. Prison is onerous for almost all inmates. I have no evidence that it is more onerous for Dean Sorenson as a consequence of his mental health.

68. Lingering dangerousness. One has to be careful to avoid any suggestion of preventative detention. I am satisfied the offender’s rehabilitation prospects are not good, however the focus of my finding as set out above is confined to a return to drug and alcohol abuse. I have not sought, nor am I in any position to find on the evidence before me, that he would embark upon an offence of violence of this order or indeed of any other order upon release. Such a finding in my view would need to be made beyond a reasonable doubt. Frankly, I can not even make it on the balance of probabilities. It is sufficient that I note my primary reason for holding the standard non-parole period does not apply or relates to a requirement that there be less weight given to general deterrence.

Custodial History

69. This offender has been in continuous custody in maximum security at Parklea, at least most of it at Parklea, since his arrest on 4 June 2008. Any sentence will date from that day.

Special Circumstances

70. I have determined that special circumstances must be found. The basis upon the finding is this, that in the event he makes good progress whilst in custody, those who oversight his release will have four years to observe him in the community. It seems to me that it is appropriate that he have an opportunity if he is deemed by those who will release him ultimately, not to be a threat to himself and not to be a threat to others, to be given an opportunity to deal in the community with his drug and alcohol issues in circumstances where there is a very strong element of personal deterrence hanging over him, i.e. a return to prison if he uses illegal drugs.

Sentencing

71. Dean Philip Sorenson you are convicted that you on or about 9 November 2007 at Cabramatta maliciously inflicted grievous bodily harm to Lucas Cree with the intent to do him grievous bodily harm. For that offence you are sentenced to a term of ten years imprisonment to date from 4 June 2008 (corrected after discussion). In accordance with my finding of special circumstances, I have set a non-parole period of six years to expire on 3 June 2014.

Now sit down and listen carefully to what I have to say now.

Normally I can order someone’s release to parole. I make no such order in your case because I am not allowed to. You have to convince the parole board of two things before you will be released. One, that you are not a risk to any other person and secondly that you are not a risk to yourself, such as using drugs, overdosing. If you do not convince them around 2014, you will not be interviewed for parole again until 2015. If you do not convince them in 2015, you will not be interviewed for release until 2016. In other words, between every time that you are rejected for parole there will be a twelve month gap, do you understand that?

OFFENDER: Yes your Honour.

HIS HONOUR: So it is in your interests to rehabilitate, unless of course you enjoy gaol. Do you understand that?

OFFENDER; Yes.

HIS HONOUR: You should understand that the Parole Board receives everything, including my judgment and reports from everybody who has any dealing with you and has had any dealing with you since 2008. So if you spit in somebody’s face or you have 42 days off for having an unauthorised implement or whatever it may be, all of that goes before the Parole Board, do you understand?

OFFENDER: Yes.

HIS HONOUR: The offender may be returned to custody.

oOo