R v Thompson, Jordon

[2021] NSWDC 590

District Court

New South Wales

Medium Neutral Citation:

R v Thompson, Jordon [2021] NSWDC 590

Hearing dates:

30 April; 9 and 28 July 2021

Date of orders:

28 July 2021

Decision date:

28 July 2021

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

The offender is convicted of recklessly causing grievous bodily harm.

Taking into account the matters on the Form 1 and after a discount of 25% for the plea of guilty, the offender is sentenced to a period of three years’ and three months’ imprisonment to date from today, 28 July 2021, and to conclude on 27 October 2024, with a non-parole period of 16 months, commencing today, and concluding 27 November 2022.

Catchwords:

SENTENCE – Guilty plea

CRIME — Reckless grievous bodily harm – Accelerated driving when victim partly inside car – Attempt to get away from victim – Victim fell from the car at speed – Victim suffered serious spinal, facial and neurological injuries – Assessment of remorse – Mental health issues

CRIME — Driving offences — Form 1 - Failure to stop and assist after vehicle impact causing grievous bodily harm

Legislation Cited:

Crimes Act 1900, s 35

Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 54A

Cases Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Brown v R [2014] NSWCCA 215

Campbell-Stephen v Regina [2010] NSWCCA 204

Daniels v R [2016] NSWCCA 35

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Gillon v Regina [2009] NSWCCA 277

Muldrock v R (2011) 244 CLR 120; [2011] HCA 39

O'Connor v Regina [2011] NSWCCA 161

R v Altaf THAWER [2009] NSWCCA 158

R v Robert Borkowski [2009] NSWCCA 102

Ross v R [2012] NSWCCA 161

The Queen v Olbrich (1999) 199 CLR 270

Weir v Regina [2011] NSWCCA 123

Category:

Sentence

Parties:

Regina
Jordon Blake Thompson (Offender)

Representation:

Counsel:
Mr C Evans (Crown)
Mr S Lawrence (Offender)

Solicitors:
Director of Public Prosecutions NSW (Crown)
Toomey Defence Lawyers (Offender)

File Number(s):

2020/69548

Publication restriction:

None

Judgment

1. Jordon Thompson pleaded guilty to a charge of recklessly causing grievous bodily harm to Fiona Huang, and comes before the Court for sentence. The statutory maximum penalty for this offence in s 35 of the Crimes Act 1900 is ten years’ imprisonment.

2. Other offences to be taken into account on the Form 1 are Mr Thompson’s failure to stop and assist Ms Huang following the vehicle impact occasioning grievous bodily harm and not providing details of the driver. The first of these offences is a serious offence carrying a maximum of seven years’ imprisonment.

3. The maximum penalty is a yardstick that provides some guidance as to the appropriate penalty. In addition, the standard non-parole period of four years is provided in respect of the offence. This is also a guide as to an appropriate penalty for an offence that is in the middle of the range of seriousness taking into account only the objective factors affecting the relative seriousness of the offence and not matters such as Mr Thompson’s plea of guilty and other subjective considerations. ^[1]

   1. Crimes (Sentencing Procedure) Act 1999, s 54A.

Plea

4. The utilitarian value of Mr Thompson’s early plea of guilty entitles him to a 25% discount on sentence. ^[2]

   2. See R v Robert Borkowski [2009] NSWCCA 102 at [32].

Facts

5. The facts were set out in a written document, which was largely agreed, but certain facts were disputed.

6. In summary, the undisputed facts are that Mr Thompson drove his Holden Calais sedan to collect his long-time friend, Brandon Campbell, from Mr Campbell’s home. Mr Thompson then drove them to his home, to a nearby fast food restaurant, and eventually parked outside the Rydalmere Tavern at about 1.30am, with his headlights off.

7. Meanwhile, the victim, Ms Huang, had received a message on Grindr, a social networking app, asking her to supply the sender with ice or methamphetamine, and she agreed to meet at the Rydalmere Tavern where she was located. She received a second message that the sender was waiting for her. She left the Tavern, got into her car, organised the prohibited drug, and walked toward Mr Thompson’s vehicle. Both vehicles were parked outside 1-3 Euston Street. ^[3]

   3. See Exhibit A, tab 4, at [19], [49].

8. As Ms Huang approached the car, Mr Thompson gestured for her to go to the passenger side window. Ms Huang lent into that window so that part of her torso was inside the car but her feet were still on the ground. She provided the prohibited drug contained in a small plastic bag. Perhaps argument occurred. Thereafter, at about 1.46am on 3 December 2019, Mr Thompson released the handbrake and accelerated away with his headlights off. Ms Huang still had some of her body inside the car. She was hanging onto the moving car, holding onto the internal part of the car, and screaming for Mr Thompson to stop the car.

9. After a short period, Ms Huang lost her grip and fell from the car. Two “clunk” sounds were heard as Ms Huang fell, about 50 metres from where Mr Thompson’s car had been parked,^[4] and where the victim’s car was located. ^[5]

   4. Exhibit A, tab 4, at [38].

   5. Exhibit A, tab 4 at [49]-[50].

10. Mr Thompson’s car had reached speeds of 52 to 66 kilometres per hour, as estimated by a police forensic expert, or 90 to 100 kilometres per hour as estimated by Mr Campbell, as Ms Huang held onto the car before she fell.

11. Mr Thompson did not stop the car and render assistance to Ms Huang. He drove back to his Rydalmere home a short distance away, parked in the underground carpark, and walked to his apartment. He refused to drive Mr Campbell home.

12. After 9am on 3 December 2019, Mr Campbell and Mr Thompson sent each other a number of text messages. ^[6]

    6. Exhibit A, tab 4, p 3 of 8 at [44] cf [55a].

13. From Mr Campbell to the accused were the following messages and letters:

1. “Y r u in the room? WTF”.

2. “Ur making me paranoid”.

3. “Can we even go for a drive to mine abit n just check my house n make sure it’s allgood I need to clear my mind I am so stressed man honestly”.

4. “CUZ HURRY UP”.

5. “Man I need to go”.

Then from Mr Thompson to Mr Campbell at 10.06am, “I’m just sorting out the Calais and to make sure what happened doesn’t come back on us”.

14. At 10.22am, Mr Thompson sent a link to a news article about the incident and the victim’s injury to one Mitchell Martin. At some stage, Mr Thompson admitted to Mr Martin that he was involved in the incident and how it occurred, that “[h]e went with his mate to buy weed, went to get it and took off, the girl held onto the car and he shook her off the vehicle”.

15. At 10.41am, Mr Campbell sent two texts to his mother seeking to talk to her.

16. Mr Thompson and Mr Campbell exited the apartment and the car park at about 7pm. Mr Thompson used his housemate’s car to drive Mr Campbell home.

17. Shortly before 11am on 4 December, Mr Campbell sent messages to Mr Thompson asserting, “U ran a poor woman over”, that he, Mr Campbell, was traumatised, that he told Mr Thompson not to go, but that Mr Thompson continued to accelerate, and that he did not stop after she fell to check that she was okay, and he accused Mr Thompson of breaking her arm, her leg, and fracturing her skull. ^[7]

    7. Exhibit A, tab 4, at [55e].

18. Mr Thompson sent a reply text about 1 hour and 40 minutes later disputing that he “said that” and asserting that Mr Campbell said, “GO GO GET THE FUCK OUTTA HERE”. Mr Campbell responded to that text by saying, “I’m going home, relax”.

19. The mother of Mr Campbell told the police at about midday on 4 December 2019, shortly before Mr Thompson’s reply text to which I referred, that Mr Campbell was a passenger in an incident in Rydalmere, and at 2pm Mr Campbell had a recorded interview wherein he described the meeting with Ms Huang as a result of Mr Thompson arranging to buy drugs from her. Mr Campbell said he pleaded with Mr Thompson to stop but Mr Thompson refused.

20. CCTV footage showed the incident outside the Rydalmere Tavern.

21. In response to a call, back on 3 December, paramedics arrived at 2.39am where Ms Huang was lying on the roadway in Rydalmere. A number of injuries were noted and she was taken to Westmead Hospital at 3.14am.

22. At about 3.30am, Ms Huang’s car was found unoccupied, but the engine was still running. A moderate amount of blood was observed on the ground about 50 metres from Ms Huang’s car, outside number 9 Euston Street. ^[8]

    8. Exhibit A, tab 4, at [49]-[50].

23. At Westmead Hospital, Ms Huang was observed to be unconscious, laying in a hospital bed with grazes to most of her body, bruising and fractures to her face, skull and cervical spine, her left subclavian artery dissected caused by sheer force causing no blood to flow into her left arm, subdural haematoma of her brain, swelling and bruising, and unconfirmed fractures of her right foot and chest.

24. Subsequent medical notes recorded her injuries as:

1. Traumatic brain injury - “Acute extra axial haemorrhage”.

2. Depressed fracture to facial bone.

3. Spinal injury.

4. Left upper limb weakness.

5. Fracture in right foot requiring insertion of hardware, most of which was subsequently removed.

6. Left facial droop.

25. In Ms Huang’s statement, she noted the following injuries:

1. Sight problems in left eye.

2. Hearing loss in left ear.

3. Neuro damage in left arm.

4. Numbness in left side of face.

5. Swelling to the head.

6. “Enormous amount of physical pain”.

26. Ms Huang was unconscious for over three weeks. She was in hospital for over seven weeks from 3 December 2019 to 22 January 2020.

Contested matters and objective seriousness

27. Mr Thompson was arrested on 3 March 2020. In a recorded interview, he denied the offences, asserted that Mr Campbell took his car for a period of time in the early hours of 3 December 2019, denied he was in the CCTV footage, accepted that his hat looked like one on a person in the footage but asserted that it was a common hat, denied going to the Rydalmere Tavern, said he would never drive off with someone partly in his car, that he had a conscience, he would have stopped to make sure they were okay, and denied organising for his car to be towed and cleaned.

28. Thus, in short: Mr Thompson was driving his motor vehicle, Mr Campbell was a passenger in that vehicle, either Mr Thompson, Mr Campbell, or both, organised through Grindr to meet up with the complainant victim, who they did not know, to buy prohibited drugs, and as the result of a dispute Mr Thompson released the handbrake and accelerated south on Euston Street while the complainant held onto the car. Part of the complainant’s body was inside the car as she had lent inside to provide the drugs. After the vehicle travelled about 50 metres from the Rydalmere Tavern, the complainant lost her grip and fell from the car. Mr Thompson continued to drive away. The complainant suffered a number of really serious injuries as a result of the car dragging her, and her falling off. At no point did Mr Thompson stop the car to render assistance. Mr Thompson and Mr Campbell then returned to Mr Thompson’s home.

29. Both Mr Campbell and Mr Thompson gave evidence about the event, each attributing to the other the organisation of the drug deal. Further, Mr Thompson gave evidence that Mr Campbell screamed at him to “Go, go go”, ^[9] whereas Mr Campbell gave evidence that he told Mr Thompson to “Stop” or “go back”. ^[10]

    9. T27/45.

    10. T16/9.

30. Mr Campbell accepted in evidence that he did not tell the police that he had met Mr Thompson on Grindr, but had met through friends. Nor did he tell the police that the drugs were ice or methamphetamine, and in respect of him contacting the lady for drugs, he first asserted that he did not recall that, although subsequently was adamant he made no contact with her, did not receive the drugs from her, and was a mere passenger. He accepted that he had been convicted of robbery when he was 16. He similarly asserted that he did not remember telling Mr Thompson to “Go, go, get the fuck out of here,” ^[11] but subsequently asserted that he said, “I told him to go, go back”, ^[12] and that Mr Thompson refused. Thus, there were problems with Mr Campbell’s evidence.

    11. T23/28.

    12. T24/16.

31. Mr Thompson adhered to his account in his evidence. However his evidence was also problematic. He was aware that this was a drug deal. He knew that he had sharply accelerated when the complainant was at least partially inside the vehicle, ^[13] that it was a dangerous situation when he sped off, ^[14] but he subsequently told the interviewing police repeatedly that he would “never do such a thing” ^[15] as drive off with someone hanging out of the window even though he had told Mr Martin that, as I quoted earlier, “the girl held onto the car and he shook her off the vehicle”. Mr Thompson also told the police that Mr Campbell had borrowed his car, that the CCTV footage of him was not of him, and that he would stop to make sure the person was okay. Each of these things he knew to be false. He also knew that the woman had not been paid for the drugs, ^[16] and he accepted in the agreed facts that the complainant was screaming as he drove away, although he denied that in evidence.

    13. T28/19.

    14. T28/29.

    15. T31/32.

    16. T31/42.

32. I am satisfied that Mr Thompson lied to the police about his involvement in the incident and made up a false account of Mr Campbell borrowing his car in order to absolve himself from responsibility for a crime he knew he had committed. In evidence he expressed some regret for misleading the police. ^[17]

    17. T34/38.

33. Mr Thompson denied in evidence that he had made arrangements to have his car towed or cleaned in any way, but he, in his texts, and in the agreed facts, sought to cover up his crime by “sorting out the Calais and to make sure what happened doesn’t come back to us” as he texted. His lies were particularly brazen and central to the offence when he said, knowing to be false:

“Q. The female fell off and you kept going?

A. I would never take off with somebody still attached to my car and if they did and if they did fall off I would have, I would, I’ve got a conscience I would stop. Even if I was a bystander I would still stop to make sure they were okay.” ^[18]

18. T35/34-38.

34. I think it more likely than not that Mr Campbell did tell Mr Thompson to go initially, given Mr Campbell’s unsatisfactory evidence on this point, but otherwise I was inclined to favour Mr Campbell’s account of the circumstances that led to the interaction with the complainant. However, I was not satisfied of this beyond reasonable doubt, and I should not conclude this matter adverse to Mr Thompson. ^[19] In particular, I am not satisfied beyond reasonable doubt that Mr Campbell encouraged Mr Thompson to stop and attend to the victim, nor that I should find that the offence was committed in company, or that even if it were, this matter in the circumstances was properly to be regarded as an aggravating factor. ^[20]

    19. The Queen v Olbrich (1999) 199 CLR 270 at [27].

    20. Crimes (Sentencing Procedure) Act 1999, s 21A(2)(e).

35. However, Mr Thompson’s texts, Mr Martin’s recollection, and the evidence of Mr Thompson and Mr Campbell, satisfy me beyond reasonable doubt that Mr Thompson was knowingly involved in a drug deal. He decided to drive off and accelerate away knowing, by her presence and scream, and his manner of driving, of the continuing peril to Ms Huang. I do not accept that Mr Thompson believed the victim had a weapon. I think little significance is to be attributed to Mr Campbell telling Mr Thompson to go in Mr Thompson’s decision to continue to accelerate with the complainant in the extremely precarious situation of being partly within the car, holding on.

36. I accept that it was a spontaneous, spur of the moment decision by Mr Thompson to drive off. But he knew Ms Huang was partly within the car, and his continued conduct to accelerate as the victim held onto the car, and the admitted intention to recklessly inflict grievous bodily harm, are not so spontaneous. That conduct involved brief consideration and it was a seriously morally culpable decision to continue.

37. I have considered the matters of aggravation and mitigation listed in s 21A of the Crimes (Sentencing Procedure) Act. Any of those aggravating factors listed that are present here, such as matters in paras (2)(i) and (ib), are inherently part of the offence and so do not serve to aggravate it.

38. As indicated by the comparative cases with which I was provided, commonly the offence of recklessly causing grievous bodily harm to a person involves direct action like punching, sometimes involving the use of a weapon. Mr Thompson did not bring a weapon but, for the few seconds as he accelerated whilst the complainant held on, his car became like one. At that stage, he was aware of the danger and persisted in the conduct. This conduct was in intentionally accelerating knowing of the danger and being reckless as to the extent of the complainant’s injuries. His recklessness, in my view, would be toward the middle of the range, only slightly below what I would regard as the mid-point because of the brevity of the period where he was in control of a dangerous weapon, namely his accelerating car, with the victim holding on.

39. The complainant’s injuries involved not only fractures to her face, a spinal injury and head swelling, but also a brain injury involving three weeks in a coma, and seven weeks in hospital, as well as facial droop, sight and hearing loss problems, neurological damage and substantial pain. These injuries, taken together, are not at the low end of the range of grievous bodily harm, but persuade me that they are more towards the middle of the range, a descriptor which is apt to describe the relative objective seriousness of the offence.

Subjective factors

40. Mr Thompson is 30 years of age, 28 at the time of the offence. He has no dependents and currently works as a roofing labourer for his brother. His two brothers and parents appear to be significant positive contributors to the community. Mr Thompson had, and now has, the benefit of their support.

41. This is a serious personal violence offence under s 21A(6) of the Crimes (Sentencing Procedure) Act, but Mr Thompson has no other convictions for such offences. He does have driving offences, all relatively recently prior to the subject offence: driving whilst having an illicit drug present in his blood, and three convictions for driving whilst disqualified, a driving status which appears to have continued beyond the date of the offence. These driving offences have some additional relevance because the offence for which Mr Thompson is being sentenced involved his driving a motor vehicle and the dangerous manner of its use.

42. On the other hand, Mr Thompson had a clear criminal record for the first 26 years of his life and, apart from the present matter before the Court and the related matters on the Form 1, he had no record save for the driving offences mentioned.

43. Mr Thompson tendered on sentence a psychiatric report by Dr Richard Furst, forensic psychiatrist. ^[21] That report relates how Mr Thompson’s parents separated when he was an infant, that he continued to live with his mother, and indicates that Mr Thompson and his step-father did not share a positive relationship, although he remained residing with them, at least from time to time, until about early this year.

    21. Exhibit 3.

44. The Report notes that Mr Thompson was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as a child, and suffered in his school due to his disclosed sexuality. He perceives himself, even amongst his family, to be a burden, and this perception has been a source of anxiety and low self-esteem. Mr Thompson gives significant, perhaps excessive, weight to how others see him. He has had a number of counsellors and psychologists over the past decade, but they seem not to have made a significant positive impact on his anxieties or his pattern of thinking.

40. Mr Thompson was admitted for 10 days as a psychiatric in-patient in his early 20’s due to severe depression. He appears to have had episodes of suicidal ideation. He commenced last year with antidepressant medication, but did not continue with it. One of his previous personal relationships involved violence towards him, which resulted in a period of anxiety and worry sufficient for Dr Furst to think it suggested a post-traumatic stress disorder (PTSD) episode.

41. Mr Thompson began using methamphetamines in his early 20’s. He says he has not used ice at all over the past four months.

42. Mr Thompson told Dr Furst, contrary to the agreed facts in this case, that he “only found out later that the female victim...had grabbed hold of the car”. ^[22] Dr Furst recorded that Mr Thompson expressed, “I actually feel terrible about this poor girl being so badly hurt over drugs”. ^[23]

    22. Exhibit 3, p 5.

    23. Exhibit 3, p 5.

43. Dr Furst diagnosed Mr Thompson in April this year as having a persistent depressive disorder, social anxiety disorder, attention deficit hyperactivity disorder, and a substance use disorder in respect of methamphetamines. His ADHD included a symptom of impulsivity.

44. Dr Furst opines that the offending was most likely the product of bad decision-making at the time, a matter that cannot be disputed, although it may not fully describe his conduct. The contribution the doctor attributed to the drug use at the time can be of limited utility in sentencing given the statutory irrelevance of self-induced intoxication as a mitigating factor under s 21A(5AA) of the Crimes (Sentencing Procedure) Act. But his chronic low mood, his ADHD, and impulsivity are something I should properly take into account. Yet it may be that the doctor’s opinion in this regard is weakened somewhat by the incorrect history that he was given, that Mr Thompson was unaware of the victim holding onto the car at the time of the offence.

45. Dr Furst recommended psychiatric treatment and psychological treatments, including antidepressant medication. He noted, and I accept, that a custodial sentence would impact on Mr Thompson more harshly, or would be a more onerous burden on Mr Thompson than it would on the average male because of his depression, anxiety and past PTSD, and may render Mr Thompson more prone to suicide.

46. I have also taken into account other references and material provided by Mr Thompson. Mr Thompson himself wrote expressing his “sincere remorse” for his “irresponsible and dangerous actions that led to a person being gravely injured” and that “this keeps me awake most nights” and how through work and exercise he is staying drug-free.

47. Mr Thompson’s father spoke of his son’s friendly, vibrant nature, yet propensity to lapse into anxiety and depression, his heartfelt remorse, and that the offence has resulted in him being scared, anxious and depressed.

48. Mr Robert Lamrock, a father of a friend of Mr Thompson, wrote of how Mr Thompson has been affected and changed by these events, and of Mr Thompson’s serious regret.

49. Mr Kyle Thompson, the offender’s brother and employer, spoke of Mr Thompson’s positive contribution to his business over the past few months, while at the same time noting his remorse and rehabilitation in the same period.

50. I also take into account a Sentencing Assessment Report from Corrective Services that indicates Mr Thompson’s willingness and ability to undertake psychological treatment, community service work, and that Mr Thompson is suitable for community service. That report assesses Mr Thompson as being a medium to low risk of re-offending.

51. The purposes of sentencing are summarised in s 3A of the Crimes (Sentencing Procedure) Act as adequate punishment for the offence, deterrence both of the offender and others in the community from committing similar offences, and for community protection, rehabilitation, accountability, denunciation of the conduct, and recognition of the harm.

52. In this case, all of these matters have some role in the sentencing process. The offence is very serious and must be adequately punished. The factors of deterrence, accountability, and denunciation, must be considered, although in Mr Thompson’s case, the impact of these matters on sentence is lessened because of his mental health issues with which he has struggled.

53. According to Dr Furst, this played some role in the offence, and I find that I should take this into account in these aspects of sentencing, and in judging the moral culpability of Mr Thompson’s conduct. ^[24] Mental health issues involved in the offence may operate to reduce the need to denounce the crime, and the offender’s case may become an inappropriate vehicle for general deterrence. Further, as I have said, a custodial penalty may weigh more heavily, and the significance of specific deterrence as a factor may be reduced. ^[25]

    24. Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [54].

    25. Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177].

54. In mentioning these matters, I do not wish to indicate a conclusion that Mr Thompson’s mental illness was a substantial, or even significant, cause of the offence. The evidence does not persuade me of that, but it was not irrelevant to, and it may to some degree explain, the morally offensive decision Mr Thompson made to conduct himself in the reckless and dangerous way he did.

55. Remorse is a relevant matter to consider in sentence. It is indicated by Mr Thompson’s plea, his letter to the Court, his evidence, and the references with which I was provided.

56. Remorse was not reflected in Mr Thompson’s conduct in failing to stop and assist, nor in his attempts to avoid detection. There was no evidence of any concern of his to contact emergency services to attend the scene to assist, or ascertain the health of the victim. It was not reflected in his lying to the police in denying any involvement in the events, nor is there any evidence of any subsequent enquiry by Mr Thompson as to the health of the victim. Even the recent history he gave to Dr Furst tended to minimise his actions, denying his knowledge of the victim’s presence, whilst he drove and accelerated his car away.

57. These matters were not instantaneous and done over a period of time, albeit a brief period and I do not regard them as merely impulsive. The circumstances I have mentioned weaken the case for remorse. Concern and anxiety over the final outcome on sentence has likely been a focus of Mr Thompson and a substantial contributor to his regret.

58. In these circumstances, I am not inclined to find that his sentence should be significantly reduced by reason of remorse, even though it is significantly reduced to the extent of 25% by reason of the utilitarian value of the guilty plea.

59. The presence, or absence, of remorse also impacts on prospects for rehabilitation. I accept the Community Corrections conclusion that Mr Thompson has a low to medium risk of re-offending, not so much by his attitude of remorse, but because of the support of his family, his willingness to engage in employment with his brother, his limited past criminal record, and the steps he has taken to overcome his drug dependency. That Mr Thompson has reasonable to good prospects of rehabilitation enhances the protection to the community against any further offence.

60. Section 5 of the Crimes (Sentencing Procedure) Act provides that the Court must not sentence Mr Thompson to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The defence did not contend that this threshold was not satisfied, and in view of the objective seriousness of a crime of this magnitude, including the degree of recklessness manifest by the acceleration of the vehicle, and the significance of the injuries caused, notwithstanding the subjective case, I am satisfied that a sentence of imprisonment is the only appropriate penalty.

61. The defence urged that I consider that a sentence of imprisonment be served other than by fulltime custody, but rather by an Intensive Correction Order. This is only available if I were to impose a head sentence no greater than two years.

62. I must take into account the matters on the Form 1, but I do not in any sense impose sentences for those offences, nor do I attempt to quantify the effect on the sentence of taking those matters into account. ^[26]

    26. Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146, 148.

63. The Court of Criminal Appeal has stated in Attorney General’s Application Under S 37 of Crimes (Sentencing Procedure) Act 1999 No 1 of 2002,^[27] that the matters in the Form 1 are admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence by giving greater weight to personal deterrence and retribution, but the focus must always remain on the primary offence.

    27. [2002] NSWCCA 518; (2002) 56 NSWLR 146.

64. I was provided with a schedule ^[28] of various potentially comparable sentences in Thawer,^[29] Gillon,^[30] Campbell-Stephen,^[31] Weir,^[32] O’Connor,^[33] Ross,^[34] Brown ^[35] and Daniels. ^[36] The schedule identified the plea discount, the sentence and non-parole period, the prior offences, the level of injuries, and the nature of the offence. There was no challenge to the contents of the schedule. All but Campbell-Steven were of a similar or lower level of injury.

    28. MFI 1, Annexure A.

    29. [2009] NSWCCA 158.

    30. [2009] NSWCCA 277.

    31. [2010] NSWCCA 204.

    32. [2011] NSWCCA 123.

    33. [2011] NSWCCA 161.

    34. [2012] NSWCCA 161.

    35. [2014] NSWCCA 215.

    36. [2016] NSWCCA 35.

65. I found the schedule helpful, recognising that the cases are only a guide and do not reflect the conduct of the offender. In particular, several of the cases involved a lesser discount for a plea than the 25% to which Mr Thompson is entitled, and in several cases the offender had a significant criminal record unlike Mr Thompson.

66. Several of the decisions were determined to be of mid-range severity and one “towards the lower end of midrange”. As indicated, I would place this matter in the mid-range of this type of offence, perhaps slightly below the mid-point. Each case has its own features and I take the matters in those cases into account only as a guide.

67. I also considered the statistics on sentencing provided in the defendant’s submissions, and the possibility of Covid restrictions being imposed on visits to persons in custody.

68. Mr Thompson is entitled to favourable consideration for this being his first offence of violence and his mental health issues. He is entitled to a 25% discount on sentence because of his plea. Nevertheless, I do not consider that a head sentence of two years or less as appropriate and thus the option of him serving the sentence by an Intensive Correction Order is unavailable.

69. As this is the first occasion, Mr Thompson will serve a custodial sentence, and because of the psychiatric matters to which I have referred, I find special circumstances.

Orders

75. Mr Thompson, please stand.

76. Jordon Blake Thompson, you are convicted of recklessly causing grievous bodily harm.

77. I take into account the matters on the Form 1 and after a discount of 25% for the plea of guilty, I sentence you to a period of three years’ and three months’ imprisonment to date from today, 28 July 2021, and to conclude on 27 October 2024, with a non-parole period of 16 months, commencing today, and concluding 27 November 2022.

**********

Endnotes

Decision last updated: 29 October 2021