R v Stubbings

Case •

[2021] NSWDC 715

•

10 November 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Stubbings [2021] NSWDC 715
Hearing dates: 28 October 2021
Date of orders: 10 November 2021
Decision date: 10 November 2021
Jurisdiction:Criminal
Before: Bennett SC DCJ
Decision:

Sentence of imprisonment of 9 years with a non-parole period of 6 years

Catchwords:

CRIME — Violent offences — Cause grievous bodily harm with intent

MENTAL HEALTH — Criminal proceedings — Person fit to be tried

SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement

SENTENCING — Penalties — Imprisonment

TRAFFIC LAW AND TRANSPORT — Traffic law — Licensing of drivers — Disqualification

Legislation Cited:

Crimes Act 1900

Crimes Act 1914 (C’th)

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Road Transport Act 2013

Cases Cited:

AM v R [2012] NSWCCA 203

Aslan v The Queen [2014] NSWCCA 114

Bugmy v The Queen [2013] HCA 37

DPP (C’th) v DeLa Rosa [2010] NSWCCA 194

Imbornone v R [2017] NSWCCA 144

Johnson v The Queen (1976) 136 CLR 619

Markarian v R [2005] HCA 25

Marrow v R [2015] NSWCCA 282

Masciantonio v The Queen (1995) 183 CLR 58

Moffa v The Queen (1997) 138 CLR 601

Muldrock v The Queen [2011] HCA 39

Munda v State of Western Australia [2013] HCA 38

Pollock v The Queen [2010] HCA 35

RvCaine (1990) 48 A Crim R 464

R v MuyKy Chhay (1994) 72 A Crim R 1

R v Qutami [2001] NSWCCA 353

R v Thornton (No 2) [1996] 1 WLR 1174

Roche v The Queen (1998) WAR 278

Tepania v R [2018] NSWCCA 247

The Queen v Alkanaan [2017] NSWCCA

The Queen v Alkanaan [2017] NSWCCA 56

Veen v R (No2) (1987–1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

Ross on Crime, Eighth Edition, 2018

Category:Sentence
Parties: Regina (Crown)
Graham Stubbings (offender)
Representation:

John Sfinas (Crown Prosecutor)
Eugene Wasilenia (counsel for the offender)

Director of Public Prosecutions (NSW) (Crown)
Criminal Law Group (offender)
File Number(s): 2019/00036088

REVISED EX TEMPORE JudgEment

Introduction

  1. Graham Stubbings pleaded guilty upon arraignment in the District Court of New South Wales in the Downing Centre on 7 October 2021 to one offence contrary to s 33(1)(b) Crimes Act 1900. The offence was in the following terms, that he on 3 February 2019 at Bidwill in the State of New South Wales did cause grievous bodily harm to EW with intent to cause grievous bodily harm to her.

Maximum Penalty

  1. The maximum penalty for this offence is imprisonment for 25 years, and there is a standard non‑parole period specified for the purposes of Part 4 Div 1A, Crimes (Sentencing Procedure) Act 1999. The period specified in the table to those provisions for this offence is imprisonment for seven years.

The Plea of Guilty

  1. The offender did not plead guilty at the earliest opportunity for reasons that are not attributable to any decision that could have been made by him in the circumstances. After the prosecution commenced he was found to be unfit for trial and was placed under the care and supervision of the Mental Health Review Tribunal until he was in due course found fit to be tried, whereupon when arraigned he pleaded guilty for the offence. He indicated that he intended to do so in the period leading up to the determination of the Mental Health Review Tribunal that he was fit for trial, including in the course of the final hearing before that body when he represented that he intended to take that course.

  2. The discount to which he is entitled for the utility of his plea of guilty is now governed by s 25D Crimes (Sentencing Procedure) Act 1999. Subsection (1) provides:

“In determining the sentence for an offence, the Court is to apply a sentencing discount for the utilitarian value of the guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.”

  1. Subsection (2) provides the various applicable sentencing discounts:

“The discount for a guilty plea by an offender (other than an offender referred to subs (3) or (4) or s 25E) is as follows:

  1. a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the magistrate in committal proceedings for the offence,

  2. a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender‑‑

  1. pleaded guilty at least 14 days before the first day of the trial of the offender, or

  2. complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

  1. a reduction of 5% in any sentence that would otherwise have been imposed, if paras (a) or (b) does not apply.”

  1. Subsection 5 provides for discounts where a person is found fit to be tried after committal for trial. The provision is expressed in the following terms:

“The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a magistrate for continued committal proceedings, is as follows‑‑

  1. a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried,

  2. a reduction of 10% in any sentence that would otherwise have been imposed, if para (a) does not apply and the offender‑‑

  1. pleaded guilty at least 14 days before the first day of the trial of the offender, or

  2. complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender.

  1. a reduction of 5% in any sentence that would otherwise have been imposed, if paras (a) or (b) does not apply.”

  1. The determination of the Mental Health Review Tribunal was on 8 April 2021. I have the reasons for the determination and annexure A to that document, which provides a helpful summary of the demographics of the offender and the assessment of medical practitioners made of him in the course of the investigation of his capacity to participate in the proceedings.

  2. The plea of guilty was not entered until 7 October 2021 and thus the opportunity presented by s 25B(5)(a) does not in these circumstances extend to allow the discount of 25% for which that paragraph provides. However the discount of 10% is available to the offender as submitted by the Crown and as conceded on behalf of the offender.

Pre-Sentence Custody

  1. The offender was arrested on 3 February 2019 and has been in custody since that time. The sentence therefore that I impose today will be ordered to commence on that date.

Related Offence

  1. Before me there is a related offence presented by way of s 166 Criminal Procedure Act 1986. This is sequence H70386019/4. The offence is contrary to s 117(2) Road Transport Act 2013. The charge is expressed in the following terms:

On 3 February 2019 at Bidwill in the State of New South Wales did drive a motor vehicle, namely registration number CAXXXX in a manner dangerous to the public.

  1. The offender consented to this Court dealing with that matter as a related offence and pleaded guilty to that charge.

  2. The maximum penalty specified for that offence is specified in s 117(2) Road Transport Act2013. This is a first offence for the purposes of the provision and thus the maximum penalty to which he is exposed is a fine represented by 20 penalty units and imprisonment for nine months. There is a statutory period of disqualification of three years upon conviction.

The Offender is Convicted

  1. I shall announce that I convict the offender of the offence to which he pleaded guilty in this Court of causing grievous bodily harm with intent to cause grievous bodily harm; I convict him of the offence of driving in a manner dangerous. This facilitates my consideration of the victim impact statement included in the Crown bundle which was not read by the victim of these events.

The Facts

  1. The facts are agreed; according to the agreed statement this misconduct occurred against the background of the victim and the offender both living in the same street in Bidwill. The victim met the offender about two or three years before the offence through a mutual friend. The mutual friend then formed a relationship with the offender and had a child. When the relationship broke down, the victim remained in contact with the offender because her partner at the time had a mutual interest with the offender in fixing cars.

  2. About November 2018 the offender allowed the victim’s Nissan Pathfinder to remain on his property until the victim could afford to fix a part of it in need of repair. At that point the vehicle had no exterior damage.

  3. On 2 February 2019 the offender told the victim he required the vehicle to be removed from his property, but she did not comply with that demand or request. On the morning of 3 February 2019 the victim received a phone call from her partner telling her that the car had been moved from the offender’s property and had one of its wheels up against a tree directly outside. She was told that the windows had been smashed, the battery was damaged, and wires had been pulled from inside the car.

  4. Although it is not disputed that the offender was responsible for moving the vehicle from his property, the Crown concedes that it cannot prove to the requisite standard that the damage to the vehicle was caused by the offender.

  5. In response to this news the victim attended the offender’s home and approached his Holden Rodeo, which was parked under a carport. She broke the rear driver’s side window. She tried to break the front windscreen but succeeded only in scratching it. She yelled out, “Come out you weak cunt.” She walked over to the house and threw an object toward the property. She threw it once again and smashed a window. According to representations attributed to the offender elsewhere, he was present in the house with his four year old son at the time and either he or he and the child were showered in glass.

  6. The victim walked away from the property toward her home. The offender came out of his house and walked to the back of his vehicle and watched her walking back up the street. He inspected the damage to his vehicle, before picking up a long rod type of object. He walked over to the victim’s vehicle and used the rod to strike her car a couple of times. He then returned to his front yard and contacted the police.

  7. The victim arrived at her home. She and her then partner then left the property and walked towards Luxford Road. At 1.09pm the offender quickly reversed out of his property by way of the driveway and drove erratically, causing the body of the car to move from side to side as it sped towards Luxford Road. By implication that manoeuvre was perpetrated on Wide Bay Circuit.

  8. At or about this time the victim was walking along the footpath outside premises at XXX Luxford Road. That property, as I understand the facts, was on the corner of Luxford Road and Wide Bay Circuit. The offender approached the intersection of these two streets but did not slow down. His vehicle continued on with the same momentum. It immediately turned right into Luxford Road, but entered the left-hand side of the roadway to face oncoming traffic, thus onto the incorrect side of the roadway for the direction of travel the offender was taking.

  9. Seconds after the victim walked past XXX Luxford Road, the offender’s vehicle was captured on closed-circuit television driving toward her. The offender mounted the kerb at the same speed and drove up onto the footpath. The vehicle did not slow down as it collided with the victim. Her body involuntarily folded up under the front of the vehicle like a ball. Witnesses who observed this event described the victim, “Tumbling around underneath the middle of the vehicle.” The vehicle’s engine revved and the offender drove the vehicle forward, dragging the victim along the concrete. Something hard hanging beneath the vehicle struck the victim with force. She lost consciousness for a period of time and ended up outside of the house at number XXY Luxford Road.

  10. The offender turned left to veer back onto Luxford Road and made a U‑turn, mounting the median strip in the middle of that road as he did so.

  11. The collision occurred over a period of less than ten seconds. He turned back onto Wide Bay Circuit at the same pace and drove back into his driveway. He exited the vehicle and inspected the front of it, before walking out of the range of the closed-circuit television.

  12. The victim was assisted by witnesses at the scene. She was passing in and out of consciousness. A portion of her right lower leg was cut open, exposing at least 2 to 3 centimetres of bone. She was transported to Westmead Hospital.

  13. Police attended the offender’s address at about 1.30pm. This was about 20 minutes after he drove out and committed this offence. He told them that he had not driven the vehicle that day, but later said he drove his car up to the corner but then turned back because he remembered he had left his son at home. He said his intention was just to get out of there after the victim had smashed his property. This sequence reflects his presence of mind which was sufficient to falsely claim, first of all, that he did not drive at all and, secondly, that he did drive but was not involved in any such event.

  14. Upon arrest he declined to participate in an interview.

  15. There was no mechanical fault or defect identified that might have contributed to the collision.

  16. His decision not to participate in an interview is not a matter to be held against him. He was perfectly entitled to exercise his right to silence, as we all might if we were confronted by police officers investigating a criminal matter in which we were suspected.

  17. The injuries suffered by the victim were, in my assessment, substantial. She suffered a deep laceration and a degloving injury to the right leg requiring sutures, with the tibia on show. There was a 30 centimetre long laceration with a 60% circumference of the lower leg, degloved by 20 centimetres. There was a major avascular segment of the right kidney, a right renal infarct, with enhancement of the superior 80% of the kidney; the term “infarct” I would note relates to tissue death because of inadequate blood supply.

  18. There was a fracture to the right lumbar 4 and 5 transverse process. There were multiple bruises to the left upper abdomen and left thigh and knee. There was tenderness to the cervical and thoraco-lumbar spine. There was tenderness to the right shoulder, left wrist and the left chest wall.

  19. She was discharged from hospital on 13 February 2019, about ten days after the event. On 7 March 2019 the victim required further surgery to remove necrotic tissue from the wound in order to promote healing with the possibility of a further skin graft. On 12 March 2019 a photograph was taken showing the victim’s right lower leg injury and skin graft; included in the Crown bundle is a colour image of damage to the victim’s leg.

  20. The Crown bundle includes a certificate provided by a general surgeon, Nicholas Lee, employed by the Western Sydney Local Health District as a trauma fellow. He relates the history of her transport to hospital on 3 February 2019 at 2.14pm after being struck by a vehicle as a pedestrian on her left side, resulting in a sudden drop in consciousness. The history he was given included that she was intentionally struck by the person driving the vehicle at high speed.

  21. A primary survey was performed. Her own airway was maintained with diffuse expiratory wheeze. Her GCS was 14, on her presentation with blood pressure of 110 over 89, and a heart rate of 87. She had a pelvic binder at the time, which I understand to be some device to immobilise her. Her abdomen was soft and tender in the left upper and right lower segments without peritonism. She had abrasions to the left flank. There was no long bone deformity upon initial presentation and her chest and pelvic x-rays were normal. EFAST [1] was negative. She had left chest tenderness and significant abrasions on her lower left chest wall and the large deep degloving laceration to the right anterior lower leg with the tibia on view. The tibialis anterior fascia had not been breached. There was a laceration to the right second digit of her hand.

    1. Extended Focussed Assessment with Sonography in Trauma

  22. A CT was performed revealing the traumatic infarct of the right kidney and displaced fractures of the right L4-L5 transverse processes.

  23. Neurology reviewed the victim. It was deemed that the kidney was unsalvageable and conservative management was therefore proposed after discussions with a consultant. The leg wound was debrided and closed, and she was transferred to the ward where she remained until discharge. A description is given of the return on 4 March 2019 for wound necrosis and review, and for return to theatre on 7 March 2019 for the wound debridement and skin grafting.

  24. The doctor records the following:

“In terms of ongoing disfigurement, the finger and leg will scar. The most obvious long term health effect would be the loss of her kidney, which will predispose her to hypertension and affect her access to life insurance and private health insurance.”

Victim Impact Statement

  1. The victim impact statement records that the victim has tunnel vision that comes and goes, and that she has lost her sense of taste and smell. She has constant pain in her neck and back. Her tail bone is in constant pain. She refers to the fracture to the L4 and L5 process. She has sclerosis and bone disease. When she moves her bones break and she expects she will eventually end up in a wheelchair.

  2. She describes having ended up in a ball beneath the car and was grabbed 10 metres, to use her description, by the offender while he was in his car. Kidney pain is unbearable. At the age of 26 she reports that she feels as a 56 year old might. She has difficulty having a normal relationship with her partner with reference to intimacy. Her legs are constantly in pain, her right leg pulsates. She says that she continues to stare into space. She complains of having bulging discs, her shoulders and hips are catching and click when she walks. Whenever she hears a car she is reminded of what happened, especially when she sees a vehicle similar to that used by the offender.

  3. It appears she continues to drive because of the sentence which represents that she is constantly grabbing at the brakes in fear that something will happen to her. She constantly looks over her shoulders, she lives in fear. She says that she became homeless because of what happened to her. This document was written on 19 October 2021.

  4. The victim impact statement serves effectively two purposes: it gives the victim the opportunity to present to the offender the extent of the adversity she suffered according to her perception because of this incident, and it gives her the opportunity to have the Court consider what she has suffered as a result of this event. She did not read this document as I noted; the information was not presented under oath or affirmation and there has been no cross‑examination. This process or procedure is not available in respect of these documents and representations by the victim of a crime. There is no material in support of the psychological aspects of her representations or the ongoing pain management that might be required by reason of the matters she has here disclosed.

  5. One must consider with caution the impact of these representations by the victim, bearing in mind that in light of the injuries over which there is no challenge, there must have been a measure of ongoing pain and discomfort and distress which one would accept would be at least likely to have a psychological impact upon the victim, although upon the material I have I could not conclude with any certainty the precise extent of the sequelae and the extent to which it is continuing. However that which is clearly supported by what is in the agreed statement and the evidence by way of the doctor’s certificate provides the Court with unassailable information, I would have thought, regarding what is at least the possible impact upon victim’s health in an event such as this.

  1. I do not bring the material to account in aggravation of the offence upon which I am to determine sentence, as an aggravating factor, because grievous bodily harm is an element of the offence to which the plea of guilty was entered. However, as the Crown correctly submits, it is appropriate that there is an assessment made of the extent of the injuries suffered and the consequences thereafter. When assessing the objective seriousness of the misconduct I am satisfied that as part of the factual matrix upon which to determine sentence the injuries suffered by this woman and the consequences that I accept, as set forth in the agreed statement of facts and the doctor’s certificate, extend to be substantial grievous bodily harm.

The Objective Seriousness of the Offence

  1. The task of the Court includes an assessment of the objective gravity of the misconduct and this includes consideration required by force of the provisions that have introduced the standard non‑parole periods. They were introduced in Part 4 Div 1A, Crimes (Sentencing Procedure) Act 1999 as amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. These require the Court to consider as a benchmark in the sentencing exercise the standard non‑parole periods specified. Section 54A(1) provides that the standard non‑parole period for an offence is that which is included in the table to the provisions. As I have noted in this case it is a period of seven years.

  2. Section 54A(2) provides that a standard non‑parole period represents the non‑parole period for an offence in the table, taking into account only the objective factors affecting the relative seriousness of that offence, that falls within the middle of the range of objective seriousness. This will require further comment.

  3. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining the appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account.

  4. Section 54B(3) requires the Court to record its reasons for setting a non‑parole period that is longer or shorter, identifying each factor taken into account.

  5. The objective gravity will be assessed upon consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending, bringing to account relevant factors provided in s 21A of the Act except those that are essential elements or integral characteristics of the offending.

  6. The fixing of a non‑parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing a sentence, but must identify all relevant matters bearing upon the question of the appropriate sentence and a process of intuitive synthesis, discussed, for example, by McHugh J in Markarian v R [2005] HCA 25.

  7. In the determination of a sentence for an offence for which there is a specified standard non‑parole period it and the maximum penalty are legislative guideposts for the sentencing court, along with other established sentencing practices and by reference to matters identified to be relevant in ss 3A, 21A and 22 of the Act.

  8. I agree with the submission by the Crown that this offence is above midrange of objective gravity. The placement of an offence on the scale of objective seriousness is always a matter of judgement and minds will differ, but bringing into account the matters to which I am about to come, I am satisfied that that is where this misconduct should be placed.

  9. Guidance was provided in this regard by Johnson J in Tepania v R [2018] NSWCCA 247. In para [110] of his Honour’s judgement, after referring to the provisions which I summarised, his Honour referred to the explanatory memorandum published by the Attorney General in the Second Reading Speech explaining the purposes of the amending legislation following the impact of Muldrock v The Queen ibid. His Honour continued at para [112]:

“In sentencing for an offence (whether or not a standard non‑parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non‑exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence.”

  1. His Honour referred to various authority and then embarked upon a discussion of the concept of moral culpability in para [113]. He noted that the term has been used in a rather flexible way as part of the general law of sentencing, found in several decisions of the High Court. In Veen v R (No 2) (1987–1988) 164 CLR 465; [1988] HCA 14, it was observed at pp 476–477 that “A mental abnormality may diminish moral culpability and an antecedent record may illuminate moral culpability.”

  2. His Honour referred to Muldrock v The Queen at para [58] in support of the proposition that retribution and denunciation might not require significant emphasis where there is limited moral culpability. He referred to authority in the High Court, Munda v State of Western Australia [2013] HCA 38 para [57], referring to the effect upon an offender of an environment in which they were raised, specifically in that case dealing with the abuse of alcohol, against which one must balance the seriousness of offending when determining the aspect of personal moral culpability.

  3. His Honour at para [116] quoted from Bugmy v The Queen [2013] HCA 37 at para [44] in the judgement of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. Profound childhood deprivation does not diminish with the passage of time and repeated offending, and attracts full weight in every sentencing decision. Exposure to negative circumstances during childhood may offer explanation for recourse to violence when frustration occurs, perhaps leading to a substantial reduction in moral culpability, against which though the importance of protecting the community from the offender might increase.

  4. The offender has his challenges in life with which I shall deal, however there are aspects of the circumstances of this offence which must be considered against the history of mental health issues that he has exhibited over time, and the limitations that have afflicted him, including the propensity to react in a manner such as he did on this occasion, once again resorting to a motor vehicle in the course of the misconduct.

  5. The offender was subject to conditional liberty at the time of this offending. He was subject to a Community Corrections Order for damage to property for a period of 12 months from 1 December 2018 and another from 14 November 2018 but was in custody.

  6. An antecedent record of offending and conditional liberty are specifically aggravating factors to be brought to account but within a limited context. They do not increase the objective gravity of the offending nor what is otherwise a proportionate sentence for the misconduct, but these matters do inform aspects of personal deterrence and the need to provide protection from the offender against the risk that he might behave once again in contravention of the law.

The Offender

  1. He was born in 1992. He is now 29 years of age and was almost 27 at the time of the offences. His first court date was in October 2013. He was then approaching his 21st birthday and thus it appears that he was able to negotiate life, at least until that point, without blemish. His past offending has been for damage to property for which he was ordered to perform community service. He was called up for breaching that order and then placed under a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 11 months.

  2. In May 2019 he was dealt with for traffic matters. In each case s 10A of that Act was applied and no penalty was imposed, although he was convicted of each of the four offences. These related to the use of an uninsured and unregistered motor vehicle and failing to appear in accordance with bail.

  3. On October 2013 for common assault he was made subject to a bond pursuant to s 9 of the Act for a period of two years with supervision. On the same occasion for an offence committed on a later date he was ordered to perform community service for using a carriage service to threaten harm and damage to property. He was called up in respect of those matters in due course and required to enter bonds pursuant to s 9 of the Act for periods of 18 months.

  4. He was later called up for using the carriage service to threaten harm in the same sequence of charges and required to enter a recognizance pursuant to s 20(1)(a) Crimes Act 1914 (C’th). I do not quite understand how he was made subject to both the s 9 bond and the recognizance in respect of the same offence, sequence 2 in that series, but that is how it appears on his record.

  5. In September 2015 a further charge of common assault resulted in a bond pursuant to s 9 for a period of 12 months. In December 2018 for damaging property there was a Community Corrections Order of 12 months. Then in November 2018 he was ordered to enter a Community Corrections Order for goods in custody, two charges, and for having custody of a knife in a public place he was fined.

  6. The offender’s mental health was assessed by medical practitioners to which I shall come, but for present purposes I want to make reference to the report by Dr Jeremy F O’Dea of 11 December 2019, beginning at para 33, beneath the heading “Forensic history” as it appears on p 4 of 7 in that report. This report was included in the Crown bundle and the material that was available to Dr O’Dea included documents relevant to the past offences, the first of which in his report was the charge sequence H51407919/1 and 2 respectively, the offences of using a carriage service to threaten serious harm and damage property.

  7. According to the documents provided to this doctor:

“It was alleged that, on 19 March 2013, at Lithgow, when Mr Stubbings was 21 years of age, in the context of a dispute between Mr Stubbings, his then partner, the mother of his seven year old daughter, and Mr Stubbings’ sister, regarding a mobile phone account, Mr Stubbings ‘...has driven his car toward the front of [his sister’s] house, but stopped before colliding with the front brick fence.’ [Mr Stubbings] has then reversed his car backwards away from the house and again accelerated towards [his sister’s] house. This time [Mr Stubbings] did not stop and collided with the front brick fence of [his sister’s] property... [Mr Stubbings] has then driven off...”

  1. The passage continues, “It was further alleged that approximately one month later Mr Stubbings sent a threatening text message to his sister.”

  2. The offender gave an explanation to the doctor for this conduct. He acknowledged that there was some dispute over a plan for a phone. The bill was not paid, but he did not know about it. He got angry with his sister, and when asked about the use of his motor vehicle he said he did not remember, it was a long time ago.

  3. With regard to the offence of custody of a knife in a public place he said that it was a kitchen knife sitting on the front seat of his car, but he did not know that it was there.

  4. The doctor then referred to the offences charged in sequence H69598621 on 3 May 2019. For those matters he was dealt with as I earlier explained. They related to the use of an unregistered and uninsured motor vehicle. The conduct upon which he engaged, although he was not charged it appears with an offence that might have been available, is reflected in the description summarised as para 39 of the doctor’s report:

“It was alleged that, on 2 November 2018, at Bidwill, following a dispute between Mr Stubbings and his most recent ex-partner [the victim of the alleged offences], with whom he has no children, his ex‑partner drove her motor vehicle from Mr Stubbings’ residence in Bidwill, and that, ‘...a short time later, [Mr Stubbings]...reverses [his motor vehicle] out of the driveway, drives around the bend...and drives his vehicle directly at the victim’s vehicle, colliding heavily with the front of her vehicle while she was seated within...[Mr Stubbings] immediately drives his vehicle home, running over the belongings that the victim was intending to collect...’”

  1. He then, at para 40, referred to the explanation given by the offender, that the allegation of a collision between the two motor vehicles was dropped, that it did not happen, but he acknowledged that the motor vehicle was unregistered at the time because he had no car so he drove the unregistered car.

  2. I should note that those events were not the subject of any evidence or submissions in the course of this hearing. The offender did not give evidence and thus I am left to resolve questions that are before me with regard to representations attributed to him without having heard him provide an explanation under oath or affirmation, and without having the benefit of cross‑examination to test any assertions he might advance. He cannot be held to account for choosing the course that he has taken by not giving evidence regarding the offences before me or the past misconduct alleged of him to which I have referred, but it has been noted in the decision of R v Qutami [2001] NSWCCA 353 representations attributed to an offender are admissible and are to be given appropriate consideration bearing in mind the caution that is required when there is no evidence given by the offender in support of them.

  3. More recently in Imbornone v R [2017] NSWCCA 144 Wilson J at para [57] noted the need to be cautious regarding out of court representations with reference to an array of authority, including Qutami.

  4. Of course their Honours in those cases were concerned with representations attributed to an offender with regard to explanations for misconduct and aspects in the nature of subjective considerations speaking to contrition and remorse, prospects of rehabilitation, and not with regard to objective facts that the Crown might seek to rely upon.

  5. Bearing in mind that according to Dr O’Dea the offender denies having been involved in a two‑car collision with his former partner on 2 November 2018 I cannot take that into account as anything more than background upon which Dr O’Dea reached his conclusions. However, nothing has been said to me in terms that I should not accept the conduct in the terms in which it appears in this report for that limited purpose, and nothing has been said to me which suggests that I should not accept the description of the event on 19 March 2013 which according the terms of the report the offender simply did not remember because it was a long time ago. That later event in my assessment is a matter that I should bring into account as part of the subjective material that informs objective gravity of the offending, bearing in mind that it has been advanced on behalf of the offender that significant weight should be given to what was said to be provocation as a consequence of the conduct of the victim in causing damage to the offender’s vehicle and casting some projectile through the window of his home.

  6. I have the Mental Health Review Tribunal determination, including the reasons for the decision made finding him fit for trial. The determination includes the representation to Dr Hearps that he intended to plead guilty to the charge, and the opinion of Dr Hearps that he had a major depressive [dis]order and schizophrenia, reasonably well controlled on medication. Dr Hearps gave evidence before the Tribunal, maintaining his opinion.

  7. Psychologist Dr Sunita Misra, and a senior psychologist Tanya Brunette provided a report on 16 March 2021 with reference to psychometric testing, which showed that his intelligence level was classified as borderline both with regard to comprehension and perceptual reasoning, and it was noted that he was in receipt of disability support from the Commonwealth and was a client of Statewide Disability Services. He was currently medicated with an antidepressant and antipsychotic.

  8. He appeared before the Tribunal and confirmed his intention to plead guilty and, reliant upon the reports of Dr Hearps and the psychologists the conclusion was that he was fit to stand trial.

  9. The annexure to the determination summarises the facts. It deals with the demographic features of his life, including that he is the second eldest of seven siblings. There is a summary of what he told Dr Jeremy O’Dea. His education came to an end in Year 9. He had never been able to read or write. He had a history of intellectual disability. His little boy, then aged about four, is in the care of his mother. He has another child, a daughter, aged about eight who is living in foster care.

  10. He informed Dr Chew of having witnessed domestic violence by his father when he was a child. He was vigorous in his denial of using illicit drugs or consuming alcohol to intoxication. He has had two brief admissions for psychiatric assessment or management at Katoomba Hospital and Bungaribee House at Blacktown Hospital. He suffered an assault shortly after entering custody in February 2019; Dr Chew’s conclusion that a primary diagnosis of intellectual disability with psychotic symptoms is noted.

  11. Intellectual disability with low frustration tolerance and problems with anger, aggression and violence were noted by Dr O’Dea.

  12. The annexure then continues with what occurred on 16 July 2020 before the Tribunal, the evidence that was presented, the medication that was prescribed.

  13. The offender gave evidence before the Tribunal on that occasion, representing an improved mood. The evidence before the Tribunal on that occasion included a limited repertoire of coping skills to manage court-related stressors that contributed to the decision that he was unfit for trial, in January 2020 the diagnosis of schizophrenia by Dr Smith, psychiatrist, the interview of the offender by the psychologist, Dr Misra, on three occasions. Anxiety was controlled with medication.

  14. Dr Hearps included that his depression had been treated in the community some five years ago and that a past diagnosis of schizophrenia was made, but he considered that the alternative diagnosis of depression with psychotic features should also be considered. There is reference to his prescription of anti-psychotics and anti-depressants returning his mood to normal. At that point the Tribunal was still satisfied that he was unfit for trial and would not become fit.

  15. On 14 January 2021 the matter was adjourned for review and thereafter adjourned for another period of two months to the ultimate consideration which I have already announced.

  16. Dr O’Dea’s report is comprehensive. I might add that each of these doctors for perhaps different but not entirely consistent reasons, have all found that the offender does have his limitations because of his mental health. This report includes demographic details, his family history, his education, the circumstances of his siblings, his developmental history including his completion of Year 9, his significant learning problems and his participation in special education classes. He spoke of having been suspended for 20 days when he threw a bin at a teacher. He is a heavy smoker, but did not drink alcohol and had never been intoxicated and denied using drugs.

  1. His psychiatric history included the prescription of psychostimulants for attention deficit hyperactive disorder when 13 years of age; that continued for a few years, his admissions to Katoomba Hospital and Bungaribee House at Blacktown Hospital, his current prescription of antidepressants and antipsychotics. He spoke of having heard voices for a few years. That commenced when his stepfather passed away about a year before; he has not had them for a few weeks. He spoke of having experienced paranoia, including that people could read his mind and thoughts.

  2. The doctor referred to his forensic history and the two episodes of misconduct to which I earlier referred. The offences that are before the Court were then discussed and then he was assessed for fitness.

  3. The opinion ultimately was that there was a significant history of developmental disability. If I have not announced previously I should note that the date of this report, was 11 December 2019. In the absence of corroborative information the doctor was of the view that the exact nature and extent of his development disability, and particularly his intellectual disability, could not be determined with precision. He noted the history of interpersonal problems in interpersonal relations and his forensic history revealing an apparent low frustration tolerance and problems with anger, aggression and violence associated with a limited repertoire of coping skills. There is evidence of at least a vulnerable personality. He ultimately came to the view that the offender was not fit for the proceedings.

  4. The documents tendered in the offender’s case included a report from Dr Richard Furst on 21 September 2021. This again refers to his demographic details, his psychiatric history, and his learning difficulties throughout school, his main interest in cars and mechanics and his participation in a small motors course at TAFE about nine years ago. He is cognitively and functionally impaired, has been throughout his life and thus is in receipt of a disability support pension; that has been from the age of 16 years. There has never been a diagnosis of a major mental illness. He spoke also of the voices he was hearing from about three years ago and the paranoia where he believed people could read his thoughts.

  5. His father had a history of bipolar disorder, alcoholism and was a domestic violence perpetrator.

  6. Regarding the misconduct he said he could not recall what he was thinking or feeling at the time when the offence occurred. There is reference here to being interviewed by police on 3 February 2019 and Dr O’Dea on 6 December 2019 and providing some details in that respect. I do not have content of any interview by the police.

  7. Recent progress is discussed, including a Mental Health State examination, and then there follows a review of the relevant documents including the report from Dr Chew on 30 September 2019, Dr O’Dea on 11 December 2019 and the Mental Health Review Tribunal determination on 8 April 2021.

  8. The Blue Mountains District Anzac Memorial Hospital, the hospital at Katoomba, on 4 April 2014 recorded that he was threatening self‑harm after an argument. His daughter had been removed by the Department of Community Services in February 2014 and he had threatened to stab the DOCS worker. He was taken to hospital by the police when they were called.

  9. The Corrective Services of New South Wales case notes are summarised, including the first of those commencing in September 2013. There is reference to a pre-sentence report in August 2015 recording his antidepressant medication and stimulant medication. His file was reopened in November 2018, 12 weeks before his arrest for this matter. He had sole custody of his son at the time of the offence. His ongoing afflictions are noted.

  10. There is reference to a review on 3 December 2018 and an assessment on 5 December 2018, and acknowledgment at that point of having anger management issues. An AVO was issued for the protection of a partner he had in 2018, Ms Rogers. Contact with his more recent partner at the time of this report, Ms Brown, provided information from her that he was struggling with things and was constantly worried that his ex-partner was going to do something to him. This appears to be a reference to Ms Rogers.

  11. He was assessed on 24 December 2018. He raised issues of frustration and feeling unsupported. He spoke of his anger build up, smashing a computer screen, his engagement with counselling to deal with anger. There was no reference to psychotic symptoms.

  12. A review in January 2019 was unremarkable. On 4 April 2019 he was then in custody for these matters. He was reported to be in good spirits at the Acute Crisis Management Unit. There was reference to him becoming fearful, associated with the voices telling him to self-harm on 13 April 2019. He was placed under observation. Anxiety was noted on 22 May 2019. He was prescribed Olanzapine. His borderline intellectual disability was noted.

  13. The medical records of Justice Health are summarised, beginning on 10 February 2019 on reception into custody the previous week, his prescription of medication for his depression and in due course his antipsychotics. On 14 April 2019 there is reference to the voices bothering him, similarly on 5 January 2020, and on 19 March 2020, when he was still hearing voices.

  14. Against all of that material the opinions offered by Dr Furst are that it is likely that the offender was angry with the complainant when he drove after her and ran her over with his car. It is likely that his limited intellectual capacity and maturity tending towards anger contributed to his apparent extreme emotional reaction and related conduct in the manner alleged of him. His borderline intellectual disability is now recognised as a cognitive impairment. He has always had the capacity for purposeful action and has acted purposefully as opposed to involuntarily throughout his life, including the time of this offending. He knew the nature and quality of these acts and that these acts were wrong.

  15. Dr Chew’s report on 30 September 2019 included, against the background which he has summarised succinctly, that he has a primary diagnosis of an intellectual disability and was currently unfit for trial.

  16. His mother provided a document on 25 October 2021 providing some background. She and her partner, the offender’s father, separated when the offender was five years old. His father engaged upon domestic violence. The offender remained with his mother until 2004, when his father gained control of him and he remained with his father until 2009. He was diagnosed at school with ADHD. He did not complete school and left in Year 9. She has been in regular contact with him since he went into custody in 2019, speaking to him daily on the phone. She has not had many visits with him because of his change in custodial arrangements and distance and the impact of the COVID-19 virus upon the opportunities that inmates now have to interact with their loved ones.

  17. There is reference to him missing his daughter and son. His daughter has been in the care of the Department of Community Services since the age of three and I understand the little boy is with his mother. He had what was said to have been a fantastic relationship with his son, always trying to give him the best in life as a single parent. She believes he has changed in custody, he knows what he did was wrong and he has had time to think. She said that his mental health is now the best it has ever been with the help he is getting in custody, with the social workers and psychologists. She believes he will not offend again because he wants to look after his family. She will be happy for him to live with her in Lithgow.

  18. The defence bundle includes the case note report prepared in respect of the offender, beginning on 13 January 2021, when he was interviewed for case plan purposes. It was noted that he has an intellectual disability; he suffers from anxiety, depression and is prone to anger outbursts. He is said to be managing well in the wing and has achieved some progress because he has been made sweeper, probably the only one trusted in the wing to perform that task.

  19. There is a reference to the possibility of foetal alcohol syndrome, a diagnosis which might explain his presentation at this interview, but that is not supported by any other material.

Submissions and Consideration

  1. I agree with the submission made on the offender’s behalf that he has demonstrated progress in custody and that speaks to what prospects there might be for rehabilitation. It is difficult though to come to the view that there are good prospects for rehabilitation beyond the controlled environment in which he is presently held in light of the history that I have before me, including that upon a representation attributed to him that he had not been taking medication for some 12 months before this misconduct.

  2. Significant weight on behalf of the offender was placed upon provocation and I was taken to a number of authorities. Upon my request of counsel, after the hearing of the matter, he sent me details of the source of his material for the submissions made and the section in the work by Ross on Crime, Eighth Edition, 2018, commencing at p 1220. This section deals with provocation, and the cases to which I was taken were those, for the most part as I recall, that dealt with provocation that was available to reduce a charge of murder to manslaughter.

  3. Masciantonio v The Queen (1995) 183 CLR 58 was cited, for the basic proposition that provocation to reduce murder to manslaughter must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self‑control before he has the opportunity to regain composure.

  4. In R v Muy Ky Chhay (1994) 72 A Crim R 1 Gleeson CJ spoke of the loss of self‑control as a concept, that is easily understood and distinguished from a deliberate act of vengeance in the factual context of a sudden eruption of violence. His Honour continued:

“However, times are changing, and people are becoming more aware that a loss of self‑control can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident. The presence of such an incident will assist a case of provocation, but its absence is not fatal.”

  1. Pollock v The Queen [2010] HCA 35 spoke of sudden provocation concerned with the temporary loss of self-control excited by the provocation, but there was no need for the loss of self-control to immediately follow the provocation.

  2. This text deals with the aspect of the triggering incident, with regard to R v Caine (1990) 48 A Crim R 464, a decision of the Victorian - it says here CCA but as I understand it that would have Court of Appeal in that jurisdiction. The deceased and the accused engaged in an argument in a nightclub, after which some three hours later there was a fatal attack; in the circumstances the trial judge was found to have erred in not directing the jury upon the relevance of provocation.

  3. There is reference to other authorities, Moffa v The Queen (1997) 138 CLR 601 and Roche v The Queen (1998) WAR 278 and R v Thornton (No 2) [1996] 1 WLR 1174 where parties might have known each other for a long time, after which a last straw event might be sufficient to provoke misconduct.

  4. Proportionality is a matter that must be brought to account, Masciantonio v The Queen ibid, included at p 67 in the Commonwealth Law Report publication of the judgement. It has been said on a number of occasions that the retaliation should be proportionate to the incident. The mood of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. The judgement continued:

“However, it is now well established that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person.”

  1. With reference to a judgement by Barwick CJ in Johnson v The Queen (1976) 136 CLR 619 at 639 this judgement continued:

“In considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction.”

  1. Again in Masciantonio v The Queen there is at pp 66 to 67 in the Commonwealth Law Report publication:

“The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self‑control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self‑control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.

However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self‑control and act in a manner which would encompass the accused's actions.”

  1. On behalf of the offender in written submissions the reference of provocation appears at para 6 sub-paragraph (d) asserting that the act was motivated by and followed provocation by the victim in the circumstances described.

  2. I am not satisfied that the offender has demonstrated that the objective seriousness of the misconduct should be ameliorated by the victim’s behaviour. I am not satisfied that it meets the tests that are advanced when assessing whether conduct by a victim has been sufficient to provoke an attack.

  3. The Crown resists a finding that the offender was acting under the influence of provocation. The Crown submits that the circumstances of the offending point in the other direction. The Crown does not resile from the inappropriate behaviour of the victim, although acknowledging that it was a reasonable inference for her to draw that the damage to her car, removed by the offender from his property shortly before, was caused by him. Of course, as the Crown concedes, that is not the only rational inference one could draw from the circumstances and the Court could not be satisfied that it was the offender who caused the damage to the victim’s car.

  4. Her conduct was inexcusable. I note that she has not been charged in relation to that and the offender has not been charged in relation to the damage that he might have caused to her car when he attacked it with the pole to which he resorted.

  5. The Crown’s submission is that the offender’s conduct was in the nature of revenge because of her behaviour towards his car and his house. The Crown points to the decision by the offender to contact the police, which, although not expressly stated, by implication must have been to notify them of the event including the damage he suffered to his property.

  6. He thereafter entered his motor vehicle, drove out onto the street, reversing from his driveway, and drove immediately to the vicinity of where the victim had walked and deliberately drove his car, without reducing speed, to strike her in front of one house, after which she was carried past another to the third house where she fell free, after which he drove again, unlawfully and vigorously, to return to his home, where, when the police attended, he denied having driven the vehicle at all and then having driven the vehicle to the location where the offence occurred.

  7. The conduct is explained by the offender’s low tolerance for anger. He had a history of committing property damage offences in circumstances where he became angry and did not have the ability to control himself.

  8. I agree with the Crown’s submissions upon this point and thus I have come to the view, as I have indicated, that the objective seriousness of the offence is above midrange.

  9. The objective seriousness is informed also by the presence of the victim’s partner near to her at the time she was struck, as an aggravating factor provided for in s 21A(2)(i), Crimes (Sentencing Procedure) Act 1999. He drove erratically, swerving from side to side and then onto the footpath, putting at risk another in addition to the victim.

  10. The offence was committed using a motor vehicle and it became in the circumstances a weapon and attracts the application of s 21A(2)(c).

  11. The Crown cautions against double counting because of the nature of the offending using the vehicle as a weapon, being a fact inextricably linked to the nature of the offending.

  12. I have already referred to the conditional liberty and past record which attracts s 21A(2)(j). I agree with the submissions made with regard to the extent of the injuries suffered and that s 21A(2)(g) does not apply, but the degree of harm is a matter that is relevant to the assessment.

  13. The harm to the victim is particularly relevant in assessing objective gravity. The Crown invites my attention to Marrow v R [2015] NSWCCA 282 and also to AM v R [2012] NSWCCA 203, passages from AM v R at paras [70] to [74] relating to the assessment of objective gravity and the absence of planning and premeditation which might be diminished given the intention, which is an element of the offence, to be assessed where an attack is sustained and where there are opportunities for an offender to desist but chooses not to do so. Those passages deal with an offender’s failure to voluntarily end an attack and the necessity for another person to pull him away.

  14. That does not strictly apply in this case because the finding that must be made, I believe, is that the offender chose to enter his motor vehicle, drive at and injure the victim as he did, and immediately drove away after he had achieved his goal. His opportunity not to engage in this behaviour of course presented after he had taken the more sensible course of having contacted the police, but chose not to follow that opportunity.

  15. I have brought to account the degree of violence involved in this misconduct and the ferocity of the attack, and I am satisfied that although her behaviour acted as a catalyst to the events that followed, that the aspect of provocation is not available to the offender in the assessment of this offence. The offender clearly anticipated by acknowledgment of his plea of guilty that she would be grievously harmed by his conduct, driving the vehicle as he did to strike her on the footpath and then drive over and drag her along for a short distance.

  16. This was not a spontaneous episode of misconduct. He chose to drive and manoeuvre the vehicle as described, including onto the pedestrian footpath to drive into and over the victim. I agree that this was retaliatory conduct.

  17. I agree with the Crown’s further submission that even if I were in error with regard to the assessment of the conduct as provocative to ameliorate the objective seriousness of this offending, the response to what the victim did was completely out of proportion to her behaviour towards his motor vehicle.

  18. The Crown submits there is no expression of remorse. I do not agree with that submission. I am satisfied that although there is no expressed representation of empathy or remorse specifically for the victim, his acknowledgment of his guilt for this very serious offence and his advice to those upon whom he was attending and to the Mental Health Review Tribunal that he was intending to plead guilty will satisfy the need that he had to discharge his burden of proof in that regard, demonstrating his willingness to accept responsibility for what he has done and recognising the harm to the victim.

  1. The Crown submits that there is no mental health condition that could be considered as causally related to the offending, nor to reduce his moral culpability. The Crown relies upon the lack of significant criminal history, including his reaching the age of 27 without committing any serious offence. In light of what I have discussed earlier with regard to his misuse of a motor vehicle and other circumstances, I would suggest that he had reached the age of 21 or thereabouts able to manage his challenges in life without attracting prosecution for criminal misconduct.

  2. The aspect of his mental health that has been clearly established in the material before me is a more difficult question. It must have some impact upon the extent of his moral culpability, but on reflection it can only be marginal in my view against the history he has accumulated since the age of 21, including his resort to violent behaviour because of his low threshold for frustration as he perceives events that are affecting him.

  3. I agree though with the submission that the evidence does not extend to establish a causal link between what might have been challenging circumstances in his formative years and the misconduct upon which he engaged in this instance, bearing in mind what was said by the Court in Bugmy ibid. His challenges in earlier life though must be given full consideration, although not so as to reduce his moral culpability.

  4. I am reminded of what Simpson J said in Aslan v The Queen [2014] NSWCCA 114 when explaining the approach one should take to the guidance earlier given by McClellan CJ at CL in DPP (C’th) v De La Rosa [2010] NSWCCA 194. The mere fact of mental illness does not of itself call for a more lenient sentence. What is required is to focus attention upon the considerations that experience has shown commonly arise in cases, as identified by McClelland CJ at CL, with the requirement that the Court examine all relevant facts in order to determine whether in the particular case the state of mental health has a consequence for which an offender might contend.

  5. In The Queen v Alkanaan [2017] NSWCCA 56 at para [108] the Court noted that, “The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence.” The Court referred to what Simpson J had offered in Aslan v R ibid, and it continued:

“It is apparent that even though Mr Alkanaan suffered from some mental impairment or disability, his Honour did not consider that his moral culpability was thereby reduced. A lack of capacity to reason, as an ordinary person might, as to the wrongfulness of his or her conduct ‘will, in most cases, substantially lessen the offender’s moral culpability for the offence’; Muldrock v R, citation omitted. His Honour did not consider this to be such a case. His Honour considered that, even despite his low intelligence and mental illness, Mr Alkanaan had demonstrated an ability to live a relatively normal life. That finding was open on the evidence.”

  1. That passage I find has application in the consideration of this matter.

  2. The submissions on behalf of the offender to which counsel spoke referred to the breadth of conduct or consequences comprehended by s 33. The significance of the injuries sustained was noted. The absence of planning or premeditation is relevant. This is also noted. An unprovoked and an uncalled for attack will elevate the objective gravity it is noted.

  3. But against those general principles it is suggested that this offence was borne out of a spontaneous loss of control, opportunistic, with no significant planning. I do not agree with that proposition. I do not see this offence as spontaneous or out of a spontaneous loss of control or opportunistic. I agree with the submission made by the Crown that this was more an act of revenge, notwithstanding that such planning as there might have been was insignificant in the context.

  4. The attack was not sustained, it is said that it encompassed a single incident and was of short duration. Simply stated in those terms that might be so, but what more would have been required in such an attack but to enter a motor vehicle, drive it at speed which was excessive in the context onto the footpath and over the top of the victim, to drag her along the footpath until she was released two doors down from where she was first struck. The offender voluntarily ended the attack. He drove into her, struck her and drove off. To that extent he did end the attack. He did not choose to reverse over her, but that does not in my view, in the circumstances of this case, diminish the objective gravity of the offender’s conduct. I have already dealt with the aspect of provocation.

  5. I do not agree that this offence is within midrange, it is above midrange. The guilty plea is indicative of remorse, it is submitted, with which I agree. He has accepted responsibility, with which I agree.

  6. The submissions refer to delay because of the challenges that were found to render him unfit to plead and the consequent extensive psychiatric intervention that has brought his state of health at a place.

  7. I have already dealt with the discount for the plea of guilty which is these days governed by the legislation to which I have referred, but I accept that the plea of guilty was indicated before it was entered to the Mental Health Review Tribunal and a doctor and is demonstrative of contrition.

  8. Reliance was placed upon disclosures made in the reports by Dr Chew, Mental Health Review Tribunal and Dr Furst, and also the offender’s mother. The offender also relies upon the opinions of Dr Chew, Dr O’Dea and Dr Furst, to which I have already referred. These do not extend to the description of the prior misconduct, which was the subject of the forensic history analysed by Dr O’Dea.

  9. General deterrence and specific deterrence are said to be approached in such a way as to not give them much weight because of the challenges faced by the offender. I agree that there is more limited weight to be given to those aspects, but in light of the history of this offender and specifically the event using a motor vehicle to drive into his sister’s fence in the past, and by reason of the offending on this occasion and that it is the product of his inability to control his anger and reaction to the circumstances presented to him, those aspects are counterbalanced by the need to provide adequate protection from the offender to the community.

  10. His prospects of rehabilitation I have already addressed. This includes reference to his lack of convictions before the age of 20. I noted there are no disciplinary findings against him in custody. There is reference to Dr O’Dea, with his comment that his presentation was controlled in custody at the time of that assessment, obviously taking advantage of the medication prescribed for him. There was, as was noted elsewhere, the failure to take his medication in the period leading up to the offending. The Mental Health Review Tribunal findings regarding his improvements are noted. He is attempting to maintain social utility with his contact with his children and his mother, clearly.

  11. It is said on his behalf that there special circumstances. The Crown is less confident about that proposition, but I do find there are special circumstances that will require a longer period on parole to facilitate his reintegration into society to achieve, to the extent possible, rehabilitation.

  12. There were cases cited in the submissions to which I have had reference, but there are distinctions between those cases and what is before me. Although they provide assistance and some level of guidance, one needs to assess the particular case to hopefully achieve the individualised justice that is required.

  13. In oral submissions counsel referred to the delay not attributable to the offender and accepted the 10% statutory discount. I referred to the cases cited from Ross on Crime and have discussed those already. I am invited to the view that he demonstrated a loss of control evidenced by the driving beforehand. “Loss of control” satisfied is not the appropriate term to apply in the findings I make in this case, where I am satisfied that he was acting to avenge what he saw had been caused to his motor vehicle, notwithstanding that before then he had contacted the police to report that incident.

  14. I am satisfied that to the extent that he did not have adequate control, it was a product of his anger directed towards the victim who had damaged his car, which prompted him to drive as he did into collision with her.

  15. Prospects for rehabilitation are guarded. I accept that he is sincere in his wish to rehabilitate. It has to be the case, I would suggest, from what is attributed to him by those who have been called upon to assess him and the progress he has made in custody. But history is against him in the sense that he has had in the past opportunities to direct his path but has been unsuccessful, and there is always the potential for him to not continue with medication as prescribed to manage those conditions that have beset him through his life.

The Sentence

  1. This brings me to the task of having to impose sentence. I am satisfied on the application of s 5 Crimes (Sentencing Procedure) Act 1999 that this case requires the imposition of a custodial sentence. I am satisfied that there are special circumstances that require a reduction in the custodial component to allow the offender to pursue rehabilitation in the community.

  2. Upon the synthesis of the material that I have before me describing the significantly serious example of this offence and bearing in mind the need to provide adequately for the protection of the community, and bringing to account all of the purposes of sentencing that are articulated in s 3A Crimes (Sentencing Procedure) Act 1999, which are that there must be punishment for what he has done, general and specific deterrence to be brought into account and attributed appropriate weight, though they might be ameliorated by reason of his mental health challenges at least to some extent, to provide protection, to promote rehabilitation, to make him accountable and to denounce his conduct which is properly, in my view, described as egregious, and importantly to recognise the harm that was occasioned to the victim in the use of a motor vehicle to attack her as he did.

  3. For the offence of causing grievous bodily harm with intent to cause grievous bodily harm, I specify a non‑parole period of 6 years to commence on 3 February 2019 and to expire on 2 February 2025. I impose a further period of imprisonment to commence on 3 February 2025 and expire on 2 February 2028. The sentence therefore is one of 9 years, applying a discount of 10% to the sentence that would otherwise have been imposed, including the non‑parole period of 6 years and the period during which the offender shall be on parole of three years thereafter.

  4. For the offence of driving in a manner dangerous, I am specifying a term of imprisonment of 6 months. That shall also be taken to have commenced on 3 February 2019. I had contemplated employing s 10A Crimes (Sentencing Procedure) Act 1999 in respect of that offence, but the misconduct in the use of this motor vehicle against his history of offending is of such moment that I came to the view that he should suffer the imposition of a term of imprisonment, albeit entirely subsumed, in the sentence of imprisonment imposed for the offence of causing grievous bodily harm.

  5. For the traffic offence of driving dangerously, there is a statutory period of disqualification of 3 years. I shall impose that by force of the legislation that governs those matters. That will commence on the date when he is released back into the community.

  6. The Crown acknowledges that there is no disqualification period required in respect of the offence of causing grievous bodily harm.

  7. Exhibits including the material from the Mental Health Review Tribunal and submissions to remain on file.

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Endnote

Decision last updated: 18 January 2022

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Most Recent Citation
Stubbings v R [2023] NSWCCA 69
Cases Citing This Decision

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Stubbings v R [2023] NSWCCA 69
Cases Cited

18

Statutory Material Cited

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AM v R [2012] NSWCCA 203
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen [2013] HCA 37