R v Wall

[2024] NSWDC 642

District Court

New South Wales

Medium Neutral Citation:

R v Wall [2024] NSWDC 642

Hearing dates:

17 and 29 October 2024

Date of orders:

22 November 2024

Decision date:

22 November 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   In relation to the severity appeal, the orders I make are:

(1)   The appeal is allowed.

(2)   I set aside the penalty imposed by the magistrate.

(3) In lieu thereof, the penalty for the severity appeal offences is included in the aggregate sentence imposed at [4] below.

Penalty

2   Jamie Wall is convicted.

3   Taking into account the matter on the Form 1, the sentence for the offence of detain for advantage I would have imposed after allowing for the appropriate discount is 3 years.

4   I impose an aggregate sentence for the severity appeal offences and the sentence matter of 3 years and 6 months with a non-parole period of 1 year and 9 months to date from 8 April 2023.

5   The non-parole period will expire on 7 January 2025 and the head sentence will expire on 7 October 2026.

6   The offender will be eligible to be released on parole on 7 January 2025.

Catchwords:

CRIME — Violent offences — Detain for psychological advantage

CRIME — Firearms offences — Use/Possess prohibited pistol/firearm

CRIME — Apprehended violence orders — Contravene apprehended violence order

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

Chararav R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

Hili v The Queen (2010) 242 CLR 520

Muldrock v R (2011) 244 CLR 120

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown/Respondent)
Jamie Wall (Offender/Appellant)

Representation:

Counsel:
S Climo (Offender/Appellant)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
SCB Legal (Offender/Appellant)

File Number(s):

2023/6672
2024/11460

Publication restriction:

None

JUDGMENT

Introduction

Sentence

1. Jamie Wall (the offender) appears for sentence after pleading guilty in the Local Court to an offence of detain a person with intent to obtain psychological advantage, occasion actual bodily harm contrary to s 86(2)(b) Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment.

2. The offender also asks the Court to take into account an offence of possess prohibited firearm contrary to s 7(1) Firearms Act 1996 on a Form 1 when passing sentence for this offence.

Severity appeal

3. The offender was sentenced in the Local Court on 19 September 2024 to an aggregate term of 20 months imprisonment with a non-parole period of 13 months for the following offences:

1. Sequence 1: Act with intent to influence witness contrary to s 323(a) Crimes Act 1900. The indicative term was 18 months.

2. Sequence 4: Attempt to breach prohibition/restriction in domestic AVO contrary to s 14(9) Crimes (Domestic and Personal Violence) Act 2007. The indicative term was 8 months.

3. Sequence 5: Contravene prohibition/restriction in AVO (domestic) contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007. The indicative term was 8 months.

4. The term of imprisonment was ordered to date from 10 January 2024. The non-parole period expires on 9 February 2025 and the head sentence expires on 9 September 2026.

5. The offender appeals against the sentence imposed.

6. As will become apparent the matters are related and involve the same complainant.

Approach to Sentencing

7. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters set out in s 21A of that Act.

8. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

9. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

10. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Severity Appeal

11. An appeal against sentence is by way of a rehearing of the evidence given in the Local Court, but fresh evidence may be given: s 17 Crimes (Appeal and Review) Act 2001.

12. Section 20(2) Crimes (Appeal and Review) Act 2001 empowers the District Court on a sentence appeal to set aside or vary the sentence imposed or to dismiss the appeal.

Facts

Sentence

13. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

14. The victim and the offender had been in an off and on relationship since they met in September 2022. The victim moved in with the offender at his residence in Bankstown on 30 December 2022. There had been no violence, and the victim did not have concerns regarding her safety.

15. On 6 January 2023, there was an argument between the victim and offender at their friend’s apartment in St Mary’s.

16. At approximately 2:00am on 7 January 2023 the victim went to St Mary’s Hotel. She later got on a train and returned to Bankstown arriving at around 9:00am.

17. She was scared to return home and wandered around Bankstown for the day. At 4:54pm the offender called the victim twice. The victim sent the offender a text message at 8:38pm stating, “You ready to be human yet Jamie boy?”.

18. At 10:11pm the offender replied, “Hannah what are you doing to me truly do you even love me at all or even want to be in my life… Hannah come home… Hannah please come home”.

19. At 11:57pm the victim sent numerous text messages to the offender about how she was scared to return. In reply, the offender accused her of being with another man and threatened self-harm.

20. The victim attended Bankstown Police station on the evening of 7 January 2023 requesting that Police assist her in getting her property from the offender’s house. Police asked the victim to provide them with more information in relation to her fears, but the victim was not willing to provide a statement.

21. The text messages continued back and forth between the offender and victim.

Detain person with intent to obtain advantage, cause ABH

22. At approximately 2:00am on 8 January 2023 the victim returned to the Bankstown residence. As soon as the victim entered the house, the offender started arguing with the victim and calling her names like “you dumb dog”. The offender spat on the victim. The offender punched the victim’s nose causing instant pain. Her nose started to bleed.

23. The offender went and laid on the lounge chair in the lounge room near the front door of the premises. The victim laid in the bed trying to plan how she could get out of the house without waking the offender. She fell asleep and woke at 9:00am on 8 January 2023. The offender was still asleep on the lounge. The victim was wearing long tights under lounge pants and a purple singlet top. The victim had $10 hidden in her pants and her mobile phone down her tights.

24. The victim got up to go to the bathroom which woke the offender. The offender told her to get back in bed. The offender than rang the victim’s father. During the call the victim called out “I’m bleeding, he’s done something to my nose”. The offender got angry and hung up the phone.

25. The offender hit the victim in the eye and nose again, before calling the victim’s father again.

26. One of the times the victim’s father was on the phone the offender was holding a knife and said to the victim “you better shush”. The offender said, “you’ll end up in a body bag if you keep going on like this”. The offender also said, “I’m going to kill myself”, which scared the victim.

27. The offender also made hand signals that he had a gun and was going to shoot the victim.

28. The offender wanted the victim to shower to wash off the blood. She took off her top but was worried about taking off her pants as her phone and money were in her pants. She tried to keep the offender out of the bathroom but was not strong enough. The offender pushed the door open, squashing her behind the door.

29. The victim screamed for help out the bathroom window. She tried to get through the front door but the offender would not let her. She ran to the back door and started opening it but the offender grabbed her and put her back in the bathroom again.

30. There was a scuffle between them. The victim managed to get out the back door. She was topless and grabbed a shirt from outside and ran next door.

31. At about 10:30am the victim banged on the front door of her neighbours. The victim said, “he is going to kill me. Please help me… call the police”. The neighbours called the police. The victim then ran towards a nearby street where an off-duty police officer saw her, made contact and then called 000. Police attended a short time after.

Arrest

32. At 10:46am the offender was cautioned, arrested and conveyed to Bankstown Police Station.

33. The offender was not offered the opportunity of an interview as he appeared to be affected by a substance.

Investigation

34. Police executed a search warrant at the Bankstown residence at about 7:13pm on 8 January 2023.

35. There were blood stains in the kitchen near the sink and in the bedroom on the linen, mattress and floor.

36. In the bedroom police located and seized a purple singlet and underwear from the bathroom. They found a metal pole in the front bedroom and a knife by the kitchen sink. Forensic analysis found there to be no fingerprint ridge structure or human blood on the knife.

Possess unregistered firearm

37. Following the offender’s arrest his home was formally vacated and the disposal of his property was arranged. Whilst cleaning the main bedroom of the property, a real estate agent located a gun on the top wardrobe shelf. This was seized by police and confirmed to be an imitation firearm.

Injuries

38. The victim was conveyed by ambulance to Bankstown Hospital, where she was admitted overnight. Upon investigation including a CT of her facial bones, she was found to have a minimally out-fractured right nasal bone.

39. Her outpatient release referral stated the following injures:

1. nasal bridge fracture; and

2. L orbital floor fracture.

Severity appeal

40. A Statement of Facts was tendered in relation to the severity appeal matters. The following is a summary of the facts.

41. There was an enforceable Apprehended Domestic Violence Order in place naming the victim as the Person in Need of Protection and the offender as the defendant.

42. A condition of this order was that the offender not approach or contact the victim in any way except through a lawyer.

43. On 29 November 2023 a request was made through the Police Corrections Unit for the offender’s telephone records and a list of permitted phone numbers as well as a phone number search on the victim’s mobile number.

44. The requests were returned on 30 November 2023 with the following results.

Sequence 1 – Act with intent to influence witness

45. The offender attempted to call the victim at 2:22pm multiple times before the victim answered at 5:39pm and he spoke with the victim for a period of 9:59 minutes. During this conversation the offender stated, “you need to go to the Police Station, and you need to change… I did not detain you from leaving the house. You left the house by your own accord, and you left the house in my red shirt. The shirt I was wearing when I met you” …. are you going to go to the Police Station and tell them I didn’t detain you”?

46. The victim stated, “What led you to be violent” and the offender stated, “It was the drugs”. The victim then asked, “Are you allowed to call me right?” and the offender replied “Why not?”

47. During one of the conversations the offender is heard asking the victim, “Can you go to the fucking cop shop and tell them you want to retract your statement or you want to fucking that I did not kidnap you and do all these kind of stuff and get me the fuck out of gaol so I can see you”. The victim replied, “You didn’t kidnap me but you definitely didn’t let me leave”.

48. The offender again asked the victim to tell the police that she could have left and she responded with, “I’m not going to go lying in terms of me looking like I lied when I didn’t fucking lie and you know it”.

Sequence 4 – Attempt to breach prohibition/restriction in AVO (domestic)

49. Between 9 November 2023 and 29 November 2023, the offender attempted to call the victim on multiple occasions. The victim did not answer the phone.

Sequence 5 – Contravene prohibition/restriction in AVO (domestic)

50. When the victim did answer the phone between 9 November 2023 and 29 November 2023, a number of conversations occurred varying in length. Some phone calls were between 10 and 20 minutes. In circumstances where the call timed out, the offender made further phone calls and spoke to the victim.

51. On 28 November 2023 a s 25 was granted for 10 January 2024. At noon on 10 January 2024 investigators attended Metro Remand and Reception Centre (MRRC) and informed the offender he was under arrest.

52. The offender was offered the opportunity to participate in an electronically recorded interview. After seeking legal advice, the offender declined an interview.

Sentencing Assessment Report

53. The Court received a Sentencing Assessment Report (SAR) dated 14 October 2024. The following is a summary of that report.

54. Prior to his arrest, the offender was residing in the Bankstown area with the victim.

55. The offender is a current National Disability Insurance Scheme (NDIS) participant and is currently being supported by Ezekiel Coordination, an approved NDIS provider. The offender’s support worker confirmed that he will be provided with supported independent living accommodation on his release.

56. The offender has two children from a previous relationship. He does not have contact with them.

57. He stated that he is a lifetime member of an outlaw motorcycle gang.

58. As a result of learning difficulties the offender left school in Year 5 to work on his family’s farm and did so for about 10 years. In 2018 he started his own fencing company and worked as a sub-contractor. He wants to return to this type of work when he is released.

59. He is currently in receipt of the Disability Support Pension and has not worked for the last two years.

60. The offender’s criminal history commenced in 2009 when he was a juvenile. His offending behaviour consisted predominately of driving, domestic violence and drug related offences. His domestic violence offending commenced when he was 17 years old and includes a number of contravene Apprehended Domestic Violence Order (ADVO) offences.

61. The offender stated that he has been diagnosed with bipolar disorder and schizophrenia and this was confirmed by Justice Health. He is currently prescribed lithium and olanzapine and he has been compliant with his medication regime since entering custody. The offender advised that he was not compliant with his medication whilst in the community and preferred to self-medicate with illicit substances.

62. The offender has been smoking cannabis since he was a child. He commenced using ice about five years ago. He stated that he was experiencing a drug induced psychosis at the time of his offending.

63. The offender initially denied that he detained the victim, stating “she was free to go whenever she wanted”. He accepted responsibility and regretted his behaviour when discussing the assault to the victim. The offender demonstrated some insight into his offending during discussions with the author of the report by acknowledging the fear the victim would have felt.

64. He expressed a willingness to engage in interventions to address his criminogenic risk factors. Corrective Services NSW records indicate that the offender was unable to participate in the Remand DV Intervention program due to his placement in the Mental Health Screening Unit (MHSU). While on remand, the offender successfully completed the EQUIPS Aggression course.

65. The offender is assessed at a medium-high risk of reoffending according to the Level of Service Inventory – Revised.

66. Community Corrections assessed the offender as unsuitable to undertake community service work due to his unpredictable mental health and drug use.

The Offender’s Case on Sentence/Appeal

67. The offender relied on the following documents in the sentence proceeding:

1. psychiatric report of Dr Richard Furst dated 12 September 2024;

2. NDIS Approval dated 24 September 2024;

3. letters of Shak Adili, Embrace Community Care, dated 28 October 2024 and 10 October 2024;

4. letter of the offender dated 15 October 2024;

5. letter of Tamlyn Holtz, Ezekiel Coordination, dated 28 October 2024; and

6. Embrace House Rules.

68. The severity appeal bundle contained the following documents relied upon by the offender in the severity appeal proceeding:

1. psychiatric report of Dr Richard Furst dated 13 September 2024;

2. certificates of the offender;

3. Care Squared Transition Plan dated 29 November 2023;

4. medico-legal report of Dr Alan Gallogly dated 8 April 2024;

5. signed Evidentiary Statement of the offender dated 31 January 2022;

6. Support Independent Living Report of Dr Jenny Nguyen dated 22 March 2022;

7. Kinela Occupational Therapy Report dated 12 January 2022; and

8. NDIS Plan Approval dated 28 November 2023.

69. I have taken into account all of the material in coming to an appropriate resolution of both matters. There is a considerable volume of material which is generally consistent and I will not repeat histories or diagnoses of the same or similar conditions. The following is a precis of the evidence relied upon by the offender to permit an understanding of the outcomes. I will try not to repeat the matters set out in the SAR.

70. The offender is 31 years of age. He grew up in Cowra, being raised on a rural property with his father. He subsequently moved to a rural property near Albion Park, living with his mother and four siblings.

71. The offender’s mother worked as a nurse and his father as an interstate truck driver. His father was often away from home for stretches of time. His father was an angry and violent man who apparently suffered from depression, having suffered from a brain injury. His father was also a heavy drinker and user of drugs. The offender reported to Dr Gallogly that his father would “hit [him] sometimes because of [his] ADHD”. The offender’s mother passed away in 2016 from bone cancer.

72. The offender attended school in Albion Park. He had learning difficulties and was assigned a teacher’s aide. There was a history of inattention, restlessness and severe behavioural problems, leading to frequent suspensions and then to the offender being expelled in Year 7. The offender reported to Dr Gallogly that he was sexually abused by a schoolteacher when he was in Year 5. He reported returning to school in Year 6 but after telling his father about the abuse he no longer had to go back to school. Following his expulsion, he was placed in two behavioural schools before leaving school altogether in Year 9.

73. In his evidentiary statement, the offender stated that after the abuse he was very depressed and went into his shell. He would sometimes have nightmares and became “suspicious generally of males”.

74. The offender was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was six years of age and was under a care of a doctor for the condition. He was prescribed stimulant medications until he was 15 or 16 years of age. He was also diagnosed with Oppositional Defiant Disorder (ODD).

69. The offender worked on a mushroom farm in his teenage years. He then worked for “Always Rigging Gear” at Unanderra for about six months when he was 17 years of age.

70. The offender was hit by a bus when he was aged 17, while riding his bike. He was taken by helicopter to hospital. He suffered a fractured wrist and compound fractures to both legs. He required knee replacement surgery on both knees.

71. The offender had a number of hospital admissions in 2012 and 2013 suffering from acute mental health symptoms including suicidal ideation following an altercation with his domestic partner. He was noted as displaying prominent anti-social personality traits.

72. Dr Furst opined that his episodes of depression and mood instability dated back to the offender’s early teens. He has a history of impulsivity, anger problems, mood-swings and deliberate self-harm, indicative of an unstable personality and the longer-term effects of exposure to his father’s violence and purported sexual abuse he endured as a teenager.

73. The offender was diagnosed with bipolar affective disorder by psychiatrist Dr Nagesh Pai who treated the offender between 2013 and 2017. He was treated with antipsychotic and mood-stabilising medication in 2013.

74. Dr Gordon Elliott conducted two assessments of the offender in January 2015 and on 12 July 2017. He noted a history of ADHD, a history of moderate severity cannabis use disorder and that the offender was receiving a Disability Support Pension for a diagnosis of bipolar disorder. Dr Elliott’s impression was that the offender had early behavioural problems, borderline intellectual functioning, impaired frustration tolerance, impulsivity and general emotional dysregulation. Dr Elliott did not believe that a diagnosis of either bipolar disorder or schizophrenia was warranted. Dr Furst agreed.

75. The offender completed Year 10 at an Intensive Learning Centre in 2016. He also attended a barista course in custody. He was released on parole in 2016. At this time, he was being treated with a combination of mood stabilising, anti-depressant and antipsychotic medications which had initially been prescribed by Dr Pai.

76. The offender was also in conflict with his family members in 2017 and was homeless for some months. He was depressed with symptoms of insomnia, persecutory delusions and heard “voices”.

77. A letter from Dr Pai dated 5 February 2018, indicated that the offender was not taking his prescribed medications at this time.

78. The offender was managed in the Additional Support Unit (ASU) at the MSPC in 2018 when he returned to custody. He was deemed to be eligible for NDIS and was later granted a high level of support and a supported independent living placement under NDIS funding.

79. The offender claimed to have residual symptoms of paranoia and voices about once per week when he was assessed by Dr Furst in 2018. At this time, he was taking mood stabilising and anti-psychotic medications. He had also been using mindfulness techniques to assist him with his stress and anxiety.

80. He was released on parole on 14 May 2019 and lived with his father again in Cowra. He was subject to Community Corrections supervision until 14 November 2020. The offender reported that he was doing well and felt that being on the farm assisted the offender. He continued taking the mood stabilising and anti-psychotic medications and was also prescribed an intramuscular injection every two weeks.

81. He separated from his partner Ms Kennedy again in 2020. He said he was feeling “stressed” and “depressed” after the separation, having follow up and support through mental health services and his general practitioner.

82. The offender stopped taking his medication in the latter months of 2020.

83. The offender then returned to the Illawarra, being placed in supported independent living funded by the NDIS. He was prohibited from living in the Illawarra region subject to a court-imposed AVO and relocated to Mt Druitt, having ongoing NDIS funding and support.

84. On 12 January 2022 an occupational therapy report stated that the offender’s performance was limited by his psychosocial disabilities and he had decreased motivation and difficulties in maintaining his personal hygiene and undertaking daily activities. His extended periods of incarceration had caused the offender to lose life skills. He was also agitated causing him problems with relationships. At the time of this report, the offender was homeless. It was recommended that the NDIS fund behavioural support services, physiotherapy, housing and four to six hours of support from a support worker daily.

85. The offender had previous treatment for Hepatitis C and has developed cirrhosis of the liver.

86. In relation to the offences before the Court, the offender was living in a residence in Mt Druitt by himself in 2022 with ongoing NDIS support. He stopped taking his medication in around June 2022. He continued to use cannabis and also used ice, about 0.1-0.2g on three to four occasions each week.

87. The offender reported to Dr Furst that the victim was also using ice. He stated, “I thought she had been assaulted. I thought I was helping out. I assaulted her… as a bit of punishment. I was a bit delirious. We were in psychosis. I was badly paranoid”.

88. When asked about the telephone calls which comprise the severity appeal matter, the offender told Dr Furst that, “I wanted to tell her, I love her”, that he believes they have prospects of having a good relationship and that he wanted to explain “his side of the story”.

89. The offender expressed remorse to Dr Furst and in his letter to the Court for his offending behaviour.

90. The offender was admitted to the MHSU at MRRC in February 2023, because his mood was unstable. He said he heard “low pitched noises” and “low-pitched voices” during the early months of his reception into custody. He told his treating psychiatrist, Dr Trevor Ma, that he was exaggerating his purported “voices” in order to get a single cell placement. He was prescribed antipsychotic medication.

91. The offender denied using illicit drugs in custody.

92. The offender has completed the EQUIPS Aggression Program and courses in business software and digital technologies. He also completed his Work Development Order in July 2023.

93. The offender began his engagement in behaviour support services on 21 February 2023. This involved face to face and telehealth phone or video calls whilst in custody. A transition plan was developed by the offender and his care team, which highlights the key supports and goals he has agreed to engage with while on bail. This included a set of proposed bail conditions and transition recommendations such as staying in Supported Independent Living accommodation, linking the offender with new groups of people with similar interests to assist him in developing a pro-social network and supports to ensure his physical and mental health needs are met.

94. The offender now has a new NDIS support coordinator, Ms Tamlyn Holtz, who has been working with the offender since August 2023. Two NDIS plans were tendered on behalf of the offender. His most recent plan dated 24 September 2024 stated that the offender has been approved for a total of $202,068.84 of funded supports, including core supports to assist the offender with every day activities and capacity building supports to assist the offender in building skills and increasing his independence. Ms Holtz stated that the offender’s NDIS plan can only be utilised to its full potential when the participant is living in the community and noted that the offender will have life-long support under the scheme.

95. Through his NDIS plan the offender identified the following goals:

1. To find secure and stable accommodation.

2. To stabilise his physical and mental health.

3. To improve his life skills at home and in the community, so that he can be more independent.

4. To find a suitable job so that he can be more independent.

5. To reconnect with his family, including his children.

102. The letter of Shak Adili, Managing Director of Embrace Community Care (Embrace), confirms that Embrace will be able to provide the offender accommodation and support services upon his release from custody. He will be supported for six hours per day generally between 10:00am and 4:00pm on a 1:1 basis and reside in a male only resident house. This was also confirmed by Ms Holtz in her letter. Mr Adili, however noted in his letter that Embrace will not be able to implement any restrictive practices that would require the main gate to be locked at the property.

103. Ms Holtz further stated that the offender will be able to engage with a culturally appropriate men’s group and a SMART recovery program if he is released from custody. She also confirmed that the offender is currently on the social housing register.

104. Dr Furst opined that the offender meets the diagnostic criteria for Personality Disorder (Antisocial and Borderline Features), Complex Post-Traumatic Stress Disorder (C-PTSD), Substance Use Disorder (Cannabis and Methylamphetamines) and ADHD.

105. Dr Furst opined that these diagnoses were operative at the time of the offending, both in relation to the sentence and severity appeal matters. He stated that the nature of the offender’s conduct was indicative of domestic offending, including the offender seeking to control and/or punish the victim for arguing with him and leaving him. These tendencies likely stem from his underling personality disorder.

106. Dr Furst suggests that the offender would likely derive more benefit from treatment with antidepressant medication rather than his current psychotropic medication. If he is to remain in custody, he should remain under the care of a psychiatrist and a mental health nurse. He should engage in a domestic violence program to address his offending. Dr Furst also recommended the offender engage in drug and alcohol counselling and psychological treatment aimed at improving his coping skills and addressing his childhood trauma and abuse issues.

107. In relation to the offender’s prospects of rehabilitation, Dr Furst opined that his main challenge going forward will be avoiding poor decision making and impulsivity, especially in relation to mood swings, anger issues and his interpersonal relationships. However, Dr Furst stated that the treatment measures as outlined would be of assistance in helping the offender to find more adaptive ways of coping, thereby reducing his risk of re-offending which is moderate-high.

108. Dr Gallogly noted the offender’s diagnosis of ADHD, however concluded that he did not have enough information to confirm or exclude this diagnosis. Rather, based on the information available to him, Dr Gallogly opined that the offender met the criteria for a diagnosis of PTSD, symptoms of which have persisted since his experience of sexual abuse in primary school and the bus accident.

Consideration of the Sentence Matter

Objective seriousness

109. The offender and the victim had been in a relationship, which she wanted to end. He manipulated her to come home by promising not to hurt her. As soon as she arrived he was aggressive towards her.

110. The victim was detained for psychological advantage. The victim was prevented from leaving the premises and subjected to ongoing threats of harm. The victim was detained for about 8.5 hours but she was asleep for an unknown period of this time.

111. The initial assault took place at about 2.00am and involved a punch to the victim’s nose. A subsequent assault occurred at about 9.00am that involved a punch to the eye and nose area.

112. The victim suffered bruising and tenderness to the eye and nasal region and a fracture to the left eye socket and nose. The offender prevented the victim seeking help from her father when he was on the phone and threatened to kill her.

113. The offender physically prevented the victim from leaving. She was so desperate to escape that she left the house partially clothed.

114. The experience would have been very frightening for the victim and it is likely to have a long lasting effect on her. She thought that the offender was going to kill her.

115. The offender had a deprived upbringing marred by domestic violence, neglect, interrupted schooling due to his mental health and sexual abuse. His complex mental health condition impairs his judgement and reduces his capacity for consequential thinking. The severity of his mood swings is a consequence of his mental health condition. In all of the circumstances, his moral culpability for the offence is significantly reduced.

Deterrence

116. General deterrence is of significance to the offences before the Court. Domestic violence is prevalent in the community. The penalty imposed must signal to others intending to commit similar crimes that they will be met with significant punishment.

117. General deterrence may be afforded less weight where an offender suffers from a mental condition because the offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53] – [54]. The offender has suffered from complex mental health conditions for an extended period. I am satisfied that his mental health condition is causally related to his offending conduct and that it has impaired his judgement as to the wrongfulness of his actions. Further, he has sought to self-medicate with illicit drugs and this has led to the development of drug-related mental health conditions that have further reduced his capacity for consequential thinking. Based on his childhood history of trauma and its involvement in the development of his mental health conditions, I am satisfied that the offender’s moral culpability for the offences is significantly reduced.

118. There is a need for specific deterrence in this case, however it is also reduced. His mental health condition is so significant that his ability to learn from his past mistakes is also reduced. On a positive note, he has substantial support available to him in the community for the first time.

Aggravating factors

119. The offence involved the actual or threatened use of a weapon, being a knife: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999.

120. The offence was committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

121. The offence was committed while the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

122. The offender has some prospects of rehabilitation. When the offender is released he will have the benefit of his NDIS package, secure housing, behavioural support on a daily basis and co-ordination of his needs by Ms Holtz. He will be more significantly supported in the community than he has been in the past. Hopefully this will assist him to make the most of his rehabilitation on parole.

123. The offender has expressed remorse to Dr Furst and to the Court. I accept that he is genuinely contrite. I am not satisfied that he has accepted responsibility for his actions, but that is probably a consequence of his mental condition.

124. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic and his mental condition.

125. The offender has been in custody since 8 January 2023. On 15 February 2023 the offender was sentenced to a term of imprisonment of 22 months to be served by way of an Intensive Corrections Order (ICO) for three domestic violence related offences. On 18 July 2023 the offender was sentenced to a fixed term of imprisonment of 3 months for an offence of larceny to date from 18 July 2023 and expire on 17 October 2023. On 10 August 2023 the offender was sentenced to a fixed term of imprisonment of 1 month to date from 10 August 2023 and to expire on 9 September 2023.

126. The offences the subject of the severity appeal were committed on 8,10 and 11 November 2023. The ICO was breached by the commission of the severity appeal offences, but no action has been taken on the breach. If any breach action was to be taken, the sentence would expire on 14 December 2024.

127. I will back date the sentences imposed to 8 April 2023 to take into account the offender’s presentence custody, allowing for some time to be served in relation to the fixed term sentences imposed while the offender was on remand and the matter dealt with by way of the ICO.

128. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520.

Severity Appeal Determination

129. I have taken into account the mitigating factors that are also relevant to the severity appeal offences. There are no relevant aggravating factors.

130. Whilst I agree that full-time imprisonment was an appropriate outcome for the severity appeal offences, in my view the sentence imposed was excessive. The objective seriousness of the offences was relatively low. At the time that sequence 1 was committed, which was the most serious offence, the offender was in custody. There were no threats made, although I accept that the offender’s contact with the victim was unwanted and designed to get her to retract her evidence. The offence was unsophisticated and bore the hallmarks of the offender’s lack of insight that is referrable to his serious mental condition. For sequence 4, the victim did not answer the phone calls. For sequence 5, the breach of the ADVO was the making of the phone calls over a three week period. Bearing in mind the offender’s criminal history this offence was more serious than sequence 4, yet the indicative terms were the same.

131. For the reasons given in relation to the sentence matter, general and specific deterrence and retribution can be given less weight.

132. I will deal with the sentence matter and the severity appeal matters by way of one aggregate sentence: s 53A Crimes (Sentencing Procedure Act) 1999. The sentences I would have imposed after allowing for the appropriate discount for the severity appeal matters are:

1. sequence 1 – 9 months;

2. sequence 4 - 2 months;

3. sequence 5 - 6 months.

133. Had the severity appeal matters been dealt with separately, I would have imposed an aggregate sentence of 12 months.

134. In relation to the severity appeal the orders I make are:

1. The appeal is allowed.

2. I set aside the penalty imposed by the magistrate.

3. In lieu thereof, the penalty for the severity appeal offences is included in the aggregate sentence imposed at [139].

Penalty

135. Jamie Wall is convicted.

136. I have had regard to s 5 Crimes Sentencing Procedure Act 1999 and I am satisfied after considering all possible alternatives that no penalty other than imprisonment is appropriate.

137. I make a finding of special circumstances. The offender suffers from a severe mental health condition and has drug issues that warrant a longer period of time on parole.

138. Taking into account the matter on the Form 1, the sentence for the offence of detain for advantage I would have imposed after allowing for the appropriate discount is 3 years.

139. I impose an aggregate sentence for the severity appeal offences and the sentence matter of 3 years and 6 months with a non-parole period of 1 year and 9 months to date from 8 April 2023.

140. The non-parole period will expire on 7 January 2025 and the head sentence will expire on 7 October 2026.

141. The offender will be eligible to be released on parole on 7 January 2025.

**********

Decision last updated: 18 February 2025