R v Waters (a psuedonym); R v Mook

Case •

[2020] NSWDC 636

•

22 July 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Waters (a psuedonym); R v Mook [2020] NSWDC 636
Hearing dates: 7 July 2020; 22 July 2020
Decision date: 22 July 2020
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Waters:

Sentenced to a term of imprisonment of 8 years 3 months. Non parole period of 5 years 9 months.For orders see 121

Mook:

Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 4 years.For orders see 118 

Catchwords:

CRIME - Grievous bodily harm with intent - assault occasioning bodily harm

SENTENCING – Relevant factors – plea of guilty - joint criminal enterprise - use of machete to maim - use of blowtorch to cause further harm- motive slight or unfathomable - parity – one offender an adult the other and more culpable a child - plea of guilty - use of expert reports - young offenders application of principle - drug abuse - backgrounds of disadvantage - mental health issues - remorse - absence of remorse - structure of sentence - special circumstances Mook- no special circumstances Waters

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Crimes (Administration of Sentencing) Act 1999

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Al v R; R v SB; R v Al v R [2011] NSWCCA95

Anderson v R (1981) VR 155

Barbaro v The Queen (2014) 253 CLR 58

Bugmy v The Queen (1990) 169 CLR 525

Bugmy v The Queen (2013) 249 CLR 571

Bus v R; S v R (unreported CCA NSW 3/11/1995)

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Courtney v R [2007] NSWCCA 195; 172 A Crim R 371

Devaney [2012] NSWCCA 285

Engert (1995) 84 A Crim R 67

Hearne v R (2001) 124 A Crim R 451

Hili v The Queen (2010) 242 CLR 520

Howard v R [2019] NSWCCA 109

JM v R [2012] NSWCCA 83

Johnson v R [2010] NSWCCA 124

Kannis v R [2020] NSWCCA 79

KR v R [20012] NSWCCCA 32

KT v R [2008] NSWCCA 51

Markarian v The Queen (2005) 228 CLR 357

Millwood v R [2012] NSWCCA 2

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Boney [2001] NSWCCA 432

R v GDP (1991) 53 A Crim R 112

R v Govinden (1999) 106 A Crim R 314

R v Pham & Ly (1991) 55 A Crim R 128

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]

R v Wong [2003] NSWCCA 247

Ryan v R [2017] NSWCCA 209

Ryan v The Queen (2001) 206 CLR 267

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Thompson v R (2000) 49 NSWLR 383

Veen v The Queen No 2 (1988) 64 CLR 465

Weininger v The Queen (2003) 212 CLR 629

Windle v R [2012] NSWCCA 222

Yildiz v R [2020] NSWCCA 69

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

Rethinking sentencing for young adult offenders in Victoria: Factsheet, Sentencing Advisory Council Victoria, December 2019.

Category:Sentence
Parties: Liam Waters (the offender)
Thomas Mook (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Ms C Doosey (for the offender Waters)
Mr S Fraser, Public Defender (for the offender Mook)

Solicitors:
Legal Aid NSW (for the offender Waters)
Legal Aid NSW (for the offender Mook)
Ms Olender (for the Director of Public Prosecutions)
File Number(s): 2019/00086138 (Waters); 2019/00097876 (Mook)
Publication restriction: A pseudonym will be used for the child offender. There is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of that offender: S15A Children (Criminal Proceedings) Act 1987.

TABLE OF CONTENTS

Facts - paragraph 1

Objective Seriousness

Grievous bodily harm with intent – s33(1)(b) Crimes Act 1900 - paragraph 15

Assault occasioning bodily harm in company – s59(2) Crimes Act 1900 - paragraph 19

Victim Impact Statement - paragraph 25

Maximum penalties and Standard Non Parole period - paragraph 29

Use of reports - paragraph 33

Subjective case Mook - paragraph 37

Subjective case Waters - paragraph 48

Other cases - paragraph 63

Submissions - paragraph 64

COVID-19 - paragraph 68

Children and young offenders - paragraph 69

Parity - young adult and child offender - paragraph 75

History of disadvantage - paragraph 80

Mental health - paragraph 85

Remorse - paragraph 88

Structure - paragraph 91

Commencement date - Mook - paragraph 93

Commencement date - Waters - paragraph 95

Special circumstances

Special circumstances - Mook - paragraph 97

Special circumstances - Waters - paragraph 100

Synthesis - paragraph 102

Conclusion - Mook - paragraph 109

Conclusion - Waters - paragraph 111

Orders

Mook - paragraph 118

Waters - paragraph 121

SENTENCE

Facts

  1. On the evening of Monday 11 March 2019 Mr Sault, was staying with friends in a unit at Northcliffe Drive, Warrawong. Around 8.30pm he went to a neighbouring unit. A number of people were there including the young person, Liam Waters (a pseudonym). Mr Sault had known Waters since January 2019 and considered him a friend. He hung out at the neighbouring unit for some time then he and Waters went back to the unit where he was staying. There, they and others, listened to music and watched TV. One of those others was Thomas Mook, who came and went from the unit a number of times.

  2. Sometime in the early hours of the morning of Tuesday 12 March 2019 Sault had a disagreement with Waters and another man. He left the unit about 3am. They had argued about Sault not sharing “ice”, methylamphetamine, with Waters the day before. CCTV from the neighbouring unit block allows for the times of some events to be determined with reasonable accuracy.

  3. Mr Sault left the unit and went to the unit’s common area. He was listening to music using a portable speaker. As he left the unit a friend enquired if he was all right. He replied, “Yes”. He was told, “Come back when you’re ready”.

  4. He then walked to the car park of the neighbouring Warrawong Plaza. He met up with some friends there and told them that he had left the unit after a disagreement. About 4:00am he received a call on his mobile phone. It was Waters, using another friend’s phone. Waters said, “I’ve got rocks, come up”. - “rocks” is another term for “ice”. Sault walked across the car park back towards the stairwell of the unit.

  5. At 4.10am Waters and Mook left the unit. Mook was shown on security CCTV to be carrying a yellow object. Soon after, Mr Sault heard a whistle. He looked up and saw someone step out in front of him. It was Waters. His arm was raised. He was holding a machete. Mr Sault, fearing he was about to be hit put his left arm up above his head. Waters swung the machete, striking the arm and nearly severing it above the wrist. Sault fell to the ground.

  6. He saw Waters swing the machete again but it missed him. Waters said, “Give me the packet out of your pocket”. Sault presumes he was referring to a packet of approximately 0.1 of a gram of “rock” or “ice” he had in his pocket. Waters reached for the victim’s pocket. Police later found a small bag of ice on the ground near the door where the victim went to seek help.

  7. Waters then struck his victim with the machete again causing a deep wound in his left leg: exhibit A, tab 4, image 3. The victim then saw a second man - he was holding a blowtorch in one hand and using his other arm to shield his face and disguise his identity. He saw a 30 centimetre blue flame and the sound of gas burning. The other male put the torch close to the victim and burnt him behind his ear, towards the top of his neck: exhibit A, tab 4, image 3. It is accepted that this man was Thomas Mook. Mook and Waters then ran off from the scene, leaving the unit block and not returning.

  8. The victim got up from the ground and sought help from occupants at the unit block. He was in a lot of pain. He screamed “Call an ambulance, call an ambulance, I’m going to die”. Residents of the unit block phoned Triple‑0.

  9. The ambulance and police attended and he received medical treatment at the scene and then in Wollongong Hospital. He was transferred to a Sydney hospital the next day where he underwent reconstructive surgery.

  10. The summary of the s 177 expert report states:

“25 year old male with partial forearm amputation from machete injury to his left forearm. This is a severe, limb threatening injury, and due to the multitude of tendon and nerve issues sustained prognosis is extremely poor. He is likely to have very stiff, weak fingers and wrist with reduced sensation and power. Long term function of the hand will be very limited.”

  1. Mr Sault now has a permanent disability. His left hand has almost zero function and his fingers are fused in a closed position. He is unable to straighten his fingers and he has feeling in only three of the five fingers and little feeling in his hand. There is significant scarring to his hand, lower arm and left leg.

  2. Waters was arrested for unrelated matters on 13 March 2019. At the time of his arrest he had a black coloured machete down his pants. Waters told police, “The machete is mine. I’m carrying it for protection. I’m dangerous”. It is not known if this was the machete used in the assault upon the victim.

  3. In recorded telephone calls between Waters and his grandmother, from Juvenile Detention, he admitted to her he was the person who used the machete during the assault on the victim.

  4. Following a police search of the crime scene a yellow gas cylinder was found in a bin in the common area of the unit block where the offence took place: exhibit C. Mook’s DNA or fingerprints were not found on it. Mook did, however, tell police that he had a cylinder with him when he left the unit with Waters. Mook initially denied being involved in any assault on the victim and told police that when Waters ran up behind him, in possession of a machete he was scared that Waters was going to “cut him up”. He told police after the incident he ran up to “behind the mission:” (the former Coomaditchie Aboriginal Mission in Port Kembla) and then went to Nowra.

Objective Seriousness

Grievous bodily harm with intent – s33(1)(b) Crimes Act 1900

  1. The offenders were both armed. Waters was armed with a machete which, he well knew, was a particularly dangerous implement. It is an element of the offence that he was intending that it be used. Even if his actions were relatively spontaneous there must have been some planning, as a phone call was used to lure the victim back to the units where he was ambushed by two men hiding in the dark. The offence, as is obvious, was committed in company.

  2. So far as Waters is concerned, the motivation for commission of the offence was trivial: a small quantity of drugs was not shared. No demand indicating a robbery was intended was actually made. Rather, he resorted to immediate violence.

  3. It is clear from all the material before me that both offenders had been using illicit drugs, but their drug use cannot and does not mitigate. In fact, it appears it led in part to the uninhibited violence used by Waters.

  4. As with all such matters it is the nature of the injury and the consequences which must be at the forefront of any assessment of objective seriousness. There was immediate pain and distress. There was subsequent hospitalisation and significant and substantial long term physical disability and psychological trauma.

Assault occasioning bodily harm in company – s59(2) Crimes Act 1900

  1. A blowtorch is a particularly vicious weapon to use. Here, only a small burn was inflicted but, the apparent vindictiveness of its use; committed while the victim was suffering from the immediate impact of the grievous bodily harm, has to be taken into account.

  2. Mook told police the screaming was “the scariest thing he had ever heard.” But, he acted to inflict further harm on his victim regardless.

  3. The offenders were both participants in the commission of the same crimes. The principal offence was a violent act where a weapon was used with considerable force to maim. It was an unprovoked attack committed in public. The attack had a profound and devastating physical and psychological impact on its victim.

  4. This sentence must be determined by having regard to the circumstances of both co‑offenders and their respective degrees of culpability. Like must be compared with like. Proper application of the parity principle discussed below does not necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality. It was Waters who made the call that lured Sault to the scene. Waters left the unit shortly after having armed himself with the machete which he wielded with some ferocity. He used that machete again while Sault was helpless on the ground. His motivation was trivial - a small slight about a tiny quantity of ice.

  5. Mook did not play any direct part in this first attack. He was not used by Waters to assist in the assault. What Waters did was done with intent to cause grievous bodily harm, and he must have been aware, despite the fact he had been using ice, that his actions would cause his victim substantial harm.

  6. On the other hand, while Mook was not a party to any argument between Sault and Waters, he was present when the machete was used, but he played no direct part in either luring Sault to the scene or the use of that weapon. He must have been aware of the consequences of it being used. Sault appears unaware of Mook’s presence until after he was struck by Waters. There is no evidence Mook acted as a lookout or egged Waters on in any way. His acceptance of responsibility for his offending cannot establish such matters. He did, however, join Waters at the ambush and then callously made his own contribution by the assault with the gas burner, but only after the machete wounds had been inflicted. His motivation is unfathomable.

Victim Impact Statement

  1. A Victim Impact Statement was prepared and read by Mr Sault. He said that prior to the incident he was a happy and regular person who liked hanging out with his mates. He spoke of the activities he enjoyed and told me that due the injuries he would never be able to enjoy things like playing rugby league or downhill mountain bike riding ever again.

  2. He said the assault had effectively completely ruined him mentally, emotionally and physically. He said the pain was so great after the incident that at times he felt like he should give up, he felt “what is the point?” He hates the way his hand looks, he also has the big C-shaped scar on his left leg, and other scars where operations where veins and the like had to be taken to repair injuries. Sometimes he cannot stand because his leg hurts and there is also a pain that travels to his arm. He cannot run and he has not been able to get physiotherapy treatment at least until very recently. He now has a permanent disability and he told me about how his hand has effectively zero function, such that he is seriously considering having it amputated.

  3. He notes the chronic pain he has been in since the event and described problems with sleep and nightmares. As soon as he closes his eyes he pictures the machete coming down.

  4. He is concerned about how financially he is going to be able to cope with all of the rehabilitation requirements necessary. He has himself been in custody, has only recently been released but intends to return to physiotherapy and continue counselling.

Maximum penalties and Standard Non Parole period

  1. Section 33(1)(b) Crimes Act 1900, the grievous bodily harm with intent offence, carries a maximum penalty of 25 years imprisonment. So far as Mook is concerned it also has a standard non‑parole period of seven years for an offence falling within the middle of the range of seriousness taking into account objective only the objective factors affecting the relative seriousness of that offence. No standard non‑parole period applies to Waters as he was a child at the time of the commission of this offence.

  2. Section 59(2) Crimes Act, the assault actual bodily harm offence, carries a maximum penalty of seven years.

  3. Careful attention to maximum penalties, and where applicable standard non‑parole periods, is required. Both provide measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. However, I do not go first to the maximum or applicable standard non-parole period and make proportional deductions from it: Markarian v The Queen (2005) 228 CLR 357 at [30] and [37]. Nor do I compare and contrast this offence with some abstract one. What I am required to do is give content to the standard non‑parole period when I come to formulating Mook’s sentence, but not Waters.

  4. It is generally accepted that standard non‑parole periods have led to an increase in sentences which requires some care here. Equal justice requires some proportionality between co‑offenders. As I discuss below when fashioning a sentence for an adult, the sentence imposed on the child offender is not irrelevant.

Use of reports

  1. Neither offender gave evidence. This is not unusual: Weininger v The Queen (2003) 212 CLR 629 at [21]. Each relied on reports from professionals tendered without challenge who were not required for cross‑examination. While a judge is entitled to be sceptical of opinions unsupported by any factual detail, there is no reason here to doubt the opinions of the psychologist who interviewed Mook or those who prepared Juvenile Justice and other reports about Waters. The reports’ content and opinions expressed in them appear to be well founded. The reports did not uncritically parrot claims by an offender who was not prepared to be tested by cross‑examination, nor were any expressions of good intentions by Mook reported without proper evaluation in a professional context. To the contrary, Mook’s reports and the Juvenile Justice reports were “warts and all” appraisals.

  2. There is no reason here to lessen the effect of any diagnosis or opinions of a professional psychologist or Juvenile Justice Caseworker when that opinion is based on a history that is not in serious dispute and supported otherwise: Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209 at [9] and [10].

  3. All of the material before me fairly sets out each offender’s background from when each was a young child, and professional opinions as to the impact of that background. The material did not traverse the objective facts or the seriousness of the crime, or where it did it was not relied upon by the defence. Each history given to the professionals.

  4. The reports are in the category of the sort of material regularly presented in sentencing proceedings. Sentencing, particularly in busy lists is rarely capable of subtlety and refinement, nor is it necessary in most cases. This is one of them. The subjective material put before me is uncontroversial and can be accepted.

Subjective case Mook

  1. Born in 1996 Mook had been before the Children’s Court and Local Court, and although he has served a short suspended sentence for dishonesty offences, has never before been gaoled. He has been in custody since he was arrested on 28 March 2019. He was on bail at the time.

  2. On 18 August 2018 he was arrested in possession of an air rifle designed to fire plastic pellets. He was ultimately sentenced for that offence to three months imprisonment from 14 April 2019. The commission of any offence while subject to bail and the promise to be of good behaviour inherent in the granted bail aggravates any penalty. Given Mook was already bail refused when sentenced no other option other than gaol was available to the Magistrate.

  3. Ms Van De Velde’s report and a history of psychological assessments from a very early age were put before me: exhibit 1, tabs 1-5.

  4. Mook told Ms Van De Velde the victim’s scream was the scariest thing he had ever heard but he failed to say why he then applied the blowtorch to Sault. He told her he tried to “blank” the incident out. Through her he accepted responsibility:

“It shouldn’t have happened, was overboard... I regret it all... lads got no arm… can’t work ever again... didn’t deserve to lose his arm... I feel bad... it’s my fault but not my fault... I take responsibility for my part.”

  1. Ms Van De Velde notes his distress and “perhaps shame, when he thought about what had been done to the victim.” He told her he had been using many drugs, but in particular ice, including just before the incident.

  2. As Mr Fraser, his counsel, submitted, Mook chose needlessly to involve himself in Waters’ dispute with Sault, despite there being no apparent reason to do so. No explanation has been offered. As his involvement appears irrational, the only rational explanation is that he had no sense of the moral wrong of what he was doing. That may be explained in part by both recent and long term drug use, which of itself cannot mitigate or excuse, and the consequences of his childhood exposure to violence and drug and alcohol abuse.

  3. Mook is an Aboriginal man who lived for most of his life in Nowra, but as a teenager, and despite his aunt’s efforts, he gravitated to the old Coomaditchie Mission at Port Kembla. He was born addicted to opioids. His parents struggled with addictions and his father died when he was three years old. He was adopted and raised by his aunt. He had a good life in Nowra, but was a hyperactive child and was diagnosed with ADHD. He spent time in support classes and was expelled from school while in year 10. He is still illiterate and finds it hard to write his own name.

  4. At Coomaditchie he was exposed to substance and alcohol abuse and violence. All these things he came to see as “normal”. By 15 he was drinking heavily. His drinking diminished as his ice use increased. He has few pro‑social friends. Both his older brothers are in gaol. He has never had a job. The only treatment Mook has received for substance abuse is the EQUIPS addiction program completed while on remand. He has been working in a furniture shop and as a welder while on remand.

  5. After examining Mook and his records Ms Van De Velde concluded he suffered from a Major Depressive Disorder and a Stimulant Use disorder, Amphetamine-Type Substance. His history and presentation were also consistent with ADHD with resulting deficits in executive functioning including problem solving. While she speculates amphetamine use could have contributed to his offending, as he could not or would not elaborate further, she herself went no further than the suggestion. A comprehensive risk assessment led her to the opinion Mook poses a moderate risk of reoffending but a low risk of engaging in violence should he reoffend. Risk of reoffending would likely be associated with resumption of substance abuse. She noted some protective factors, in particular his growing insight into his substance abuse and mental health problems. A risk management and treatment plan was proposed involving if possible motivational psychotherapy, drug relapse prevention, counselling, peer relationships counselling, participation in gaol programs such as VOTP and EQUIPS Aggression, psychoeducation about ADHD and vocational and education support.

  6. Without going into detail the other reports before me confirm the various problems faced by Mook since he was born and the interventions by his aunt with professional assistance from Royal Far West to deal with a number of significant concerns with Mook’s anger, defiant and oppositional behaviour and superficial self-harm as a child, his ADHD and his inability to read and write. A number of opinions were offered which succinctly summarised by Dr D’Souza on December 19 2002 resulting from a number of biological and environmental factors impinging on his behaviour, not uncommon among children born to drug affected parents.

  7. Mook’s Aunt Donna was in court, and also wrote a letter to me. She reaffirms her love and continuing support for the offender. Her commitment to him is heartening. He will need all the help he can get adjusting to normal life on release - and strong pro-family connections can make a big difference. Aunt Donna has always been there for him, and as he matures. I hope Mook realises how important that support is and contrasts it with the ephemeral friendships he formed with other drug users and criminals.

Subjective case Waters

  1. Ms Lynch, a very experienced solicitor with the Children’s Legal Service, reviewed Waters’ Family and Community Service records, Juvenile Justice reports and other records relating to him. In her affidavit of 7 July 2020 she explained that attempts to obtain a comprehensive psycho‑legal report were thwarted by Waters’ refusal to cooperate. Her considerable efforts however enabled by reference to contemporaneous records for material tending to establish a background of severe deprivation to be put before me: Bugmy v The Queen (2013) 249 CLR 571.

  2. Waters was born on 28 May 2002. He is an Aboriginal Australian. He has a number of siblings and half-siblings. Family and Community Services (FACS) have been involved with his family since before he was born because of drug use and domestic violence. FACS supervised him from the moment he was born. No fears were expressed about Waters’ mother physically abusing her children, but her neglect of them was a concern. Both his parents had their own histories of abuse, neglect, substance abuse and domestic violence. Both had spent time in gaol. Waters’ mother was in gaol just before he was born. His father spent time in boys’ homes, juvenile detention and gaol. When Waters was born his father he was in custody for breach of parole. Waters has never had any relationship with his father.

  3. At less than six months old Waters had already been in FACS respite care after reports of insufficient food and clothing. By 2003 Waters was in FACS care. He had been left in the care of a friend who had been robbed by associates, and those associates had made threats towards Waters. He and his siblings were placed in the care of their grandmother. Even then Family and Community Services noted concerns about the grandmother’s ability to care for the children. Formally, the Minister for Community Services had contact responsibility for him until he turned 18. There is no evidence before me that any Minister had met their responsibilities.

  4. In 2011 the children were spending time with their mother, including overnight stays. There are reports from this period of her drug use, drug dealing and prostitution. The children frequently saw physical abuse between their mother and her partner. Reports from this period when Waters was eight or nine years old note his behaviour was becoming aggressive. Other reports note his grandmother’s house was inappropriately small for the number of people living in it and that she was leaving the younger children with Waters so she could go out.

  5. In 2012 it was reported the boys were seen as completely out of control and that their grandmother was unable to manage them. Issues relating to alcohol consumption were raised, as were issues about inadequate shelter and inadequate supervision. Waters was said to be at risk due to his own risk taking behaviour, and considered as being extremely low range of adaptive functions. Between 2000 and 2011 there were 16 reports raising concerns about the children being at risk of sexual harm or inappropriate sexual behaviour.

  6. For most of his life Waters has been unsupervised. He lived predominantly away from his grandmother’s home and participated in high risk and criminal activity from a very young age. He has received minimal formal education, and when he did attend little was accomplished because of his lack of focus and motivation. He spent only one hour in high school, and that was in a special program designed to meet his needs because of behavioural problems and truanting when he was in primary school. He is regarded as illiterate.

  7. Juvenile Justice records note two psychological assessments of Waters’ intellectual capacity. In 2011 he was assessed as extremely low range of general intellectual disability, and in 2012 a conclusion is one of mild mental retardation.

  8. Ms Lynch’s review of the material in his FACS and DOCS and Juvenile Justice Files do not contain any reports from any medical professional, just notes as to him having been diagnosed. On 29 April 2011 there is a note that he has shown signs of foetal alcohol syndrome but this was never diagnosed. In July 2012 notes show a diagnosis of ADHD and mild intellectual disability, and that Waters generally expresses himself in a negative way, that he could benefit from a mentor to enhance communication skills. Further his literacy and writing skills are below age level and his behaviour is becoming increasingly dangerous; carrying weapons, physical violence, theft and damage of property reported. As reported he had limited contact with his parents as both were in gaol.

  9. There are also notes of diagnoses of conduct disorder, mild developmental disorder and underdeveloped social skills due to a lack of role models.

  10. His peers were often older or were involved in crime. He has a history of substance abuse and reports no motivation to cease when he is released. He has been previously diagnosed as I said with a number of disorders; Attention Deficit Disorder, Conduct disorder and Oppositional Defiance disorder. He will not take medications prescribed for these conditions. He may have a mild intellectual disability.

  11. Over the last three years Waters has spent long periods in custody. The custodial notes indicate he had been aggressive to staff and other young people. He participated to some extent with cultural groups but this was the only cultural integration he has ever had. His behaviour also kept him out of the education programs run in detention centres.

  12. From 2015 his criminal and Juvenile Justice records show increasing aggression with him sustaining injuries following behavioural outbursts in custody. This evidence lead to finding that he is unable to regulate his emotions and acts without concern for consequences. In custody “he displayed a limited ability to comprehend instruction and uses aggression or threats of violence to negotiate his needs being met.” He has made repeated comments indicating he has no regrets or concerns for his victim in this matter and may pose a threat to him in the future.

  13. Waters is now 18. He was transferred to an adult gaol from juvenile detention on his 18th birthday. His custodial record starts in 2012 when he was ten, although he only spent one night in Reiby Juvenile Detention Centre at that age. He spent most of 2015 and some of 2016 at Reiby. He was in detention from October 2017 until released to parole on 4 January 2019. In February 2018 I dismissed an appeal against the control orders made by the Children’s Court for armed robbery offences. He was on parole for assault and destroy property offences when he committed these offences.

  14. Since his return to custody on 13 March 2019 a breach of probation call up and further offences in custody relating to destruction of property and intimidation and assaults on officers have resulted in additional control orders being imposed. He became eligible for parole on 11 June 2020. On 18 June 2020 he received his first adult prison discipline punishment for fighting.

  15. Telephone intercepts reveal that while in juvenile detention he was subject to administrative punishments and additional security measures such as being handcuffed, having no contact with juvenile detention workers, being kept in a holding room with only two hours out of cells and two hours TV a day.

Other cases

  1. I have had regard to the other cases to which I have been referred and written in oral submissions. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. The pattern of past sentences for an offence can serve as a guide or help establish a range. However, each case and each offender is individual: See Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, where Justices Bell and Gaegler said at [47].

“Sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’

Submissions

  1. Helpful oral and written submissions were provided. They have informed this judgment.

  2. For the Director of Public Prosecutions, Ms Olender, solicitor, asked for appropriate weight to be given to the relative seriousness of the s 33(1)(b) offence, particularly Waters’ arming himself with a machete and its use to inflict extreme and gratuitous violence, putting it in her assessment well above mid-range. She stressed the consequences to the victim which would lead me to that conclusion, being the effective loss of his hand and the ongoing pain, physical and psychological. She noted the danger in cases such as this of double-counting matters in aggravation, but said they still had to be factored into any sentencing exercise.

  3. Mr Fraser, Public Defender, for Mook noted the violence inherent in this offence was at odds with Mook’s history, which showed no prior acts of criminal violence. He stressed the need to examine the relative culpability of both offenders, noting Mook’s minimal involvement in the actions that caused the serious injury to Sault. Mook was, he accepted, armed, but only the sense that he used an item originally intended to facilitate drug ingestion, that is to heat ice prior to smoking. His remorse and response to gaol similarly showed no indication of violence. To the contrary, it seems he is maturing, performing well and engaged in programs that would assist his rehabilitation. Mr Fraser further submits that if appropriate programs could be put in place to help him overcome his history of disadvantage, his drug use and consequent involvement in this offence his prospects are good. He does not present as a danger to the community and should be removed from it only for the minimum period necessary to ensure adequate punishment.

  4. Ms Doosey, counsel for Waters, took me through the principles applying to sentencing children and intellectually disabled and otherwise offenders, and goes to the background of profound disadvantage. She put to me that little if any weight needed to be given to principles regarding general deterrence. It was conceded that other than residual optimism, that the young can mature and reform with life experience, no positive findings in that regard could be made here. That said, she noted that Waters should be given some incentives towards changing his behaviour and that as he matured he may come to take advantage of them, justifying a finding of special circumstances.

COVID-19

  1. No specific evidence was put before me in relation to the impact of the present pandemic on either offender, but I am aware that tensions and problems may arise in the gaol should the virus be disseminated amongst prisoners. I am also aware of and keep up to date with regular Community Corrections memos and the advice published by the Judicial Commission of New South Wales. I have heard evidence in many cases that contact visits are no longer available, but I am aware that telephone video conferencing visits can be made available. I am also aware that prisoners are regularly locked down in their cells, more often than normal. The impact of the present pandemic is a matter that I can and should take into account generally when I come to sentence both offenders.

Children and young offenders

  1. Principles concerning sentencing of young offenders have particular application in this case. Waters was a child, Mook was very immature. Both come from backgrounds that meant their capacity to reason and make moral decisions was compromised. In custody Mook has shown some developing maturity. Waters has not. He still behaves as he did when a young, troubled child.

  2. Section 6 of the Children’s Criminal Proceedings Act 1987 must be considered in Waters’ case. It sets out the significant principles that courts must take into account when sentencing children. The relevant principles stated in s 6 and their application to an individual case depends to a very large extent on the age of the offender and the nature of the offence committed: Bus v R; S v R (unreported CCA NSW 3/11/1995).

  3. There are well‑established principles that when sentencing a child or young adult considerations of punishment and general deterrence may be given less weight in favour of individual treatment aimed at rehabilitation: R v GDP (1991) 53 A Crim R 112. What underpins the general practice of imposing lesser sentences on youthful offenders than those imposed on adults who commit similar crimes lies in the recognition of the immaturity of youth: Hearne v R (2001) 124 A Crim R 451.

  4. Those principles recognise and emphasise the potential for cognitive, emotional and physiological immaturity of a young person and its contribution to their breaches of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person’s mid-20s: Al v R; R v SB; R v Al [2011] NSWCCA 95; Howard v R [2019] NSWCCA 109; Yildiz v R [2020] NSWCCA 69; Kannis v R [2020] NSWCCA 79.

  5. Where serious crimes of violence are committed by young adults or children the focus of any sentencing exercise can shift, while acting in the best interests of the child remains relevant, so too does the significant public interest in punishing and deterring serious crime. This can at times require adult type penalties: R v Pham & Ly (1991) 55 A Crim R 128; KT v R [2008] NSWCCA 51. The closer the child is to 18, the notional age of maturity, and the need to protect the community from a child offender are both relevant considerations. Nevertheless, even for crimes which here fit very serious categories, it is recognised that harsh dealing with children or even young adults under the guise of community protection can often have a greater adverse impact on the community than an initial focus that does not take into account the need for rehabilitation. It must be asked in each case:

  1. How did the offender’s youth impact on his offending?

  2. Did it play any role in diminishing his criminality?

  3. Have the prosecution put forward any evidence to suggest that rehabilitation should not be the paramount consideration for sentencing process?

  1. Here so far as questions one and two are concerned, the answer is yes. The answer to question three is more problematic. Rehabilitation is always a significant consideration, but here it cannot be given paramountcy in either case. It has perhaps more resonance for Mook, but tragically less so for Waters.

Parity - young adult and child offender

  1. When fashioning a sentence for a young adult and a child offender the sentence to be imposed on the young offender is not irrelevant: R v Wong [2003] NSWCCA 247; R v Boney [2001] NSWCCA 432. This is particularly so if the adult involved in the same crime is, as here, young and immature. The extent of the comparison may be limited given the different sentencing objectives and other considerations in the Children (Criminal Proceedings) Act 1987 because those considerations do not operate to the same extent as they do when a child offender is sentenced. A sentencing court must be alert to the real risk that unless care is taken and proportionality applied a young adult may very well have a justifiable sense of grievance with respect to the very difference of the regimes that apply: R v Govinden (1999) 106 A Crim R 314 at [15].

  2. Mook and Waters were participants in the commission of the same two crimes. This sentence must be determined by having regard to their individual circumstances and their individual respective degrees of culpability. At the end like must be compared with like. Different personal and criminal histories may justify a difference in sentence.

  3. Proper application of the parity principle does not necessarily mean that each offender is sentenced on the basis their individual actions have the same objective criminality. There can be reasons why one offender is less objectively culpable than the others: Johnson v R [2010] NSWCCA 124.

  1. Each participant may be equally legally responsible for crimes, but their respective levels must be individually assessed. There is accordingly a need to look at what each offender did: KR v R [2012] NSWCCCA 32 at [19]

  2. Mook was present and armed with a torch. He had no apparent personal reason to be involved at all. He was a figure in the shadows not seen by the victim till he was struck down. Mook did not yield the machete; he did not directly inflict grievous bodily harm. His liability for the grievous bodily harm and its use was derivative. I am prepared to find that there is some significance in the different roles, but it does not significantly diminish the criminality of Mook because he was prepared to go with Waters when he ambushed his victim, knowing he was armed with the machete and he joined in that assault by burning Mr Sault with the gas burner.

History of disadvantage

  1. Not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol fuelled violence. But both these offenders do have that background and it has had in each case an indelible impact upon them that continues to this day.

  2. If an offender has been raised surrounded by abuse, violence and deprivation this may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been so marred. The effects of profound deprivation do not diminish over time and should be given “full weight” determining the sentence in every case.

  3. The background of the kind described here will leave a mark on the person throughout their life and will, as is evident in the material before me, compromise both offenders’ capacity to mature and learn from experience. It remains relevant here even where so far as Waters is concerned there is concerned there is a long history of offending.

  4. Attributing “full weight” to a person’s background is not to suggest that it has only mediatory relevance. All the purposes of punishment have to be considered and social deprivation may impact on those purposes in different ways: see Engert (1995) 84 A Crim R 67.

  5. The impact on both offenders of their dysfunctional childhoods, the fact that their parents spent time in custody, as did other relatives, cannot be underestimated: See for example Millwood v R [2012] NSWCCA 2. Background can help explain an offender’s recourse to violence when frustrated. However, an inability to control a violent response to frustration may be a countervailing factor as it can increase the importance of protecting the community from the offender: Bugmy v The Queen (2013). Again, tragically, this is an important consideration in Waters’ case.

Mental health

  1. Waters has been, to the extent possible given his history of defiance when dealing with any authority figures, assessed as having an intellectual disability and a number of other significant psychological conditions. Mook too has his own psychological problems.

  2. The principles to be applied when sentencing someone suffering from psychological disadvantage, mental illness or psychological problems were succinctly summarised in DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1 at [177]. Intellectual disability attracts the same application of proper principle: Anderson v R (1981) VR 155. Waters’ intellectual disability relevantly means his moral culpability may be reduced. There is less need to denounce his crime. To use someone who has an intellectual disability as an example to others is generally inappropriate. Given his history I could not find a custodial sentence would weigh more heavily on him, nor does his history which includes not only intellectual disability but psychological conditions which I have detailed, produce significant specific deterrence. To the contrary, the evidence before me means there is a particular need to give consideration to the protection of the public.

  3. Insofar as Mook is concerned I am prepared to accept that his background and the conclusions reached by Ms Van De Velde mean that his moral culpability can be reduced, but it does not appear to have had any other significant impact on his capacity to serve the sentence. All such matters have to be taken into account and require difficult questions of judgment and assessment. Balancing of all those factors has been described by Baston J as being to an extent intractable: Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1].

Remorse

  1. The mere fact of a guilty plea of itself is a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an offender over a period of time which confirms a position of genuine and deeply felt contrition: Thompson v R (2000) 49 NSWLR 383 at [118].

  2. Waters, apart from the bare fact of his guilty plea, has made not one expression of regret or remorse. To the contrary, he has apparently gloated about what he did to his victim. He is not to be punished for his apparently heartless response when the Victim Impact Statement was read to him, but is a factor indicating he presents as a continuing danger to the community.

  3. Mook too entered an early guilty plea and in the circumstances chose not to contest his involvement in the joint enterprise with Waters - although untested, his out of court statements of remorse and tangible expressions of contrition to his psychologist can be accepted and supported by his behaviour in custody. Although I always note such expressions need to be viewed with caution and circumspection.

Structure

  1. Each offender entered an early guilty plea and will have their otherwise appropriate sentences reduced by 25% to reflect the utilitarian value of that plea: s 25D Crimes (Sentencing Procedure) Act 1999.

  2. While there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively, here the sentence for the main offence can in my view comprehend and reflect the criminality for the other. They are part of a single episode of criminality with many common factors and the sentences will be made concurrent: Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 at [27].

Commencement date - Mook

  1. Mook was arrested on 28 March 2019. A sentence of three months was imposed from that date. A review of his custodial record reveals that it is fairly apparent that the 17 days in custody before he was bailed in December and January were not credited to him.

  2. There must be some independent punishment for the firearms offence. Taking into account totality principles I will commence his sentence on 28 April 2019.

Commencement date - Waters

  1. From his arrest on 13 March 2019 he has been serving balance of parole and five other sentences. Although he has been in custody since that date his other sentences must be taken into account given their seriousness and the fact that most of them, if not all of them, were committed while in custody.

  2. He was sent to an adult gaol on his 18th birthday. His present sentence’s non-parole period expired on 16 June 2020. While I simply do not add one sentence on the other, any sentence I impose must take into account and adequately and fairly respond the totality of the criminality involved in all of his offences. I propose to start Waters’ sentence on 13 March 2020.

Special circumstances

Special circumstances - Mook

  1. The evidence relating to Mook’s need for psychological treatment, assistance dealing with his many problems and help adjusting to normal community life will provide a basis for a finding of special circumstances. In so finding I am mindful that the requirement that the minimum period which Mook should be imprisoned must also reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

  2. It is important to note that studies reveal that offenders who receive parole supervision upon release take longer to commit a new offence and were less likely to commit a new indictable offence than those who were released unconditionally in the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

  3. I am satisfied from all the material before me that a substantial finding of special circumstances can be made in his case.

Special circumstances - Waters

  1. So far as Waters is concerned I cannot make a finding of special circumstances. I have no confidence on any of the material before me that he has any prospect of adjusting to supervision and control in the community. The only reason for a finding of special circumstances would be the accumulation of this sentence on another one. Given his present trajectory I have no confidence at all that he will in fact be released to parole.

  2. This is tragic. It may be, as Ms Doosey suggests on his behalf, that as he matures, as he receives assistance to which I will refer later, that attitude may change. But the predictive exercise that I must make today does not justify a finding of special circumstances. And I note for his benefit that his release to parole must be earned and that the State Parole Authority will take into account the strict provisions of s 135 of the Crimes (Administration of Sentencing) Act 1999 before releasing him to parole.

Synthesis

  1. As with any sentence, many of the sentencing principles I have outlined do not all point the same way. Two themes have emerged when dealing with immature adults and older children in circumstances such as this. One recognises the strong community interest in their rehabilitation, the other stresses the protective function of the Court, particularly where extreme acts of violence are involved: JM v R [2012] NSWCCA 83.

  2. I must have proper regard to those purposes. It is also fundamental that when taking into account competing factors there is no correct balance of them: see Veen v The Queen No 2 (1988) 64 CLR 465 at [478]. As the High Court said in Weininger v The Queen (2003) 211 CLR 629 at [23].

“Sentencing is … a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”:

  1. One important principle is the sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1985) 167 CLR 348.

  2. The Court does not average out considerations. Some factors can be determinative.

  3. Objectively the crimes committed by both offenders were so serious that there was little scope to ameliorate penalty by focus on rehabilitation. But without in any way intending to minimise the objective seriousness of the crimes, particularly the grievous bodily harm matter with intent matter, each offender’s rehabilitation cannot be ignored either.

  4. These crimes were committed by an immature young man and an immature child. For many reasons their criminal and moral failures should not be equated with those of mature adults. That said, both well knew the wrongness of their acts. It may be argued that general deterrence has little rational claim upon sentencing discretion in relation to crimes which are relatively spontaneous and are not thought through to any degree, and where no thought was put into the consequences to the victim or frankly by the offenders to the consequences to themselves as would occur because they would inevitably be caught. In such cases it may be said that heavy sentences are likely to be little utility in reducing the general incidence of crimes.

  5. Mitigating factors must be given appropriate weight. But as I have said they cannot lead to the imposition of a penalty disproportionate with the gravity of the offence. I also note, as the High Court made clear in Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 at [52] to [58], that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. Sentencing courts have an obligation to vindicate the dignity of the victim, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help and the consequence escalation of violent vendettas between members of the community.

Conclusion - Mook

  1. Mook’s background may help explain his uptake and continued use of illicit drugs such as ice and his recourse to violence on this occasion. The subjective material before me allows for some understanding of him and the conclusion is moral culpability for the inability to control an impulse has been substantially reduced. He chose to accompany Waters to what was effectively an ambush. He acted to inflict an additional injury using the blowtorch, after Waters had nearly severed the victim’s arm and cut into the leg. He acted despite the victim’s screams and obvious distress. His callous disregard for another must be condemned and justifies appropriate retribution. Retribution is the notion that reflects the community’s expectation that the offender will suffer punishment and the particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; Windle v R [2012] NSWCCA 222

  2. His actions however appear out of character. He has used his time in custody to mature and take advantage of the opportunities offered to him. He has support in the community and a plan can be put in place to help him learn, perhaps for the first time, how to lead a normal community life. The longer he is supervised, the more assistance he gets, the greater his prospects. Despite his crimes he should be given that opportunity.

Conclusion - Waters

  1. Despite Waters’ youth, his record, his constant breaches of probation and parole and his offending in juvenile detention speak in general terms to a sentencing principle that says he is not deserving of leniency and a need for greater weight to be given to specific deterrence and protection of the community, every offender no matter how serious his crime however is deserving of individual consideration.

  2. Waters by reason of his youth requires a nuanced approach, not just a retributive sentence designed to send a message to other wrongdoers.

  3. His short life has been one of rejection by all but his grandmother and other members of his family. He has been met with negative responses by authorities all his life, and his responses to that rejection have helped form this young man. In the past his every action has been met with understandable ostracism, including by myself on an earlier occasion. He has received nothing and expects nothing from our community. Juvenile detention and gaol have reinforced his own negative views of himself and it appears he takes those negative attitudes when he inflicts harm on others, including his victim here and those he has offended against while on remand.

  4. There are real social determinants to his behaviour; his intellectual disability, his poor mental health, a childhood where his lived reality was abuse, deprivation, drug and alcohol use and where violence and going to gaol were normalised. He has no impulse control and he has no concept of the long term consequence of his actions on himself, let alone others.

  5. Telephone conversations with his grandmother from custody set out his disturbing attitudes towards the use of violence and hurting people, including the victim in this matter. He seems to view others as he views himself, with profound negativity.

  6. He is still a young man, barely 18. He offended when he was a child. He must now spend his early adulthood in gaol. For someone with so little personal resources gaol will not deter him. Rather, the most probably consequence is that gaol will become a criminal learning environment. In gaol there are prison subcultures which act in opposition to prosocial or rehabilitative environment intended by the State. They can encourage or reinforce criminal behaviour. It is a sad reality that, and I quote from the Sentencing Advisory Council of Victoria:

“Prisons are marked by the presence of cultural values supportive of crime that can be transmitted through daily interactions, and as a result criminal orientations are potentially reinforced. It appears that harsher prison conditions do not necessarily discourage future offending, and paradoxically the experience of imprisonment makes it criminogenic, that is a crime producing effect by producing a criminal learning environment by labelling and stigmatising offenders as criminals or by simply constituting an ineffective way of addressing the underlying causes of crime.” Rethinking sentencing for young adult offenders in Victoria: Factsheet, Sentencing Advisory Council Victoria, December 2019.

  1. Waters is presently in for the foreseeable future, resistant to any measures that might enable him to learn as he matures. Unless there is a remarkable change and a remarkable effort by those now responsible for him while he is incarcerated on release he will be less equipped to lead a normal community life than he is now. That does not mean the effort must not be made, and I quote again from the Victorian Sentencing Advisory Council:

“Young adults are still forming habits and are not set in their ways as older adults. Research suggests that supportive approaches such as counselling, mentoring and providing multiple coordinated support services are the most effective ways to foster young adults to desist from further offending. These interventions have the greatest effect on the highest risk offenders.” Rethinking sentencing for young adult offenders in Victoria: Factsheet, Sentencing Advisory Council Victoria, December 2019.

Orders

Mook

  1. In relation to both matters you are formally convicted.

  2. For the offence of cause grievous bodily harm to person with intent, you are sentenced to a term of imprisonment of 6 years 9 months consisting of a non parole period of 4 years to commence on 28 April 2019 and expire on 27 April 2023. You will be eligible for consideration for release to parole on 27 April 2023 to serve the balance of term of 2 years 9 months to commence on 28 April 2023 and expire on 27 January 2026.

  3. For the offence of assault occasioning actual bodily harm in company you are sentenced to a fixed term of imprisonment of 11 months. That term is to commence on 28 April 2019 and expire on 27 March 2020. The fixed term is intended to reflect the minimum period that would have been spent in custody.

Waters

  1. In relation to Waters the first matter, cause grievous bodily harm to person with intent, it must be dealt with at law, and for obvious reasons so too should the second, assault occasioning actual bodily harm in company of other(s).

  2. For the offence of cause grievous bodily harm to person with intent you are sentenced to a term of imprisonment of eight years and three months. There will be a non-parole period of five years and nine months. That sentence will commence on 13 March 2020. You will be eligible for consideration for release to parole on 12 December 2025. The balance of the term is two years and six months. The total sentence will expire on 12 June 2028.

  3. For the offence of assault occasioning actual bodily harm in company of other(s) there will be a fixed term for the assault occasioning actual bodily harm matter of five months, which will commence on 13 March 2020 and expire on 12 August 2020.

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Decision last updated: 23 October 2020

Most Recent Citation
Cases Citing This Decision

1

R v Matthew Cole (a pseudonym) [2022] NSWDC 238
Cases Cited

34

Statutory Material Cited

4

GAS v The Queen [2004] HCA 22
Barbaro v The Queen [2014] HCA 2
Power v The Queen [1974] HCA 26