R v Wyatt

[2019] NSWDC 490

District Court

New South Wales

Medium Neutral Citation:	R v Wyatt [2019] NSWDC 490
Hearing dates:	18 - 22 February 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Convicted and sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years and 2 months.
Catchwords:	Sentence – reckless wounding – after trial- special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Veen v R (No 2) [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Matthew Wyatt (Offender)
Representation:	Counsel: Mr D Brack for the Crown Mr D Murray of counsel   Solicitors: David Kelly Lawyers
File Number(s):	2018/00032969
Publication restriction:	Nil

SENTENCE

1. Matthew John Wyatt born in 1983, 36 years of age appeared for trial at Gosford District Court on 18 February 2019 in relation to the following counts on indictment:

Count 1, on about 27 January 2018 at Umina Beach in the State of New South Wales wounded Gary Phyllis with intent to cause grievous bodily harm, an offence pursuant to s 33(1)(a) of the Crimes Act.

2. The Director further charged in the alternative to count 1 that:

Count 2, on or about 27 January 2018 at Umina Beach in the State of New South Wales recklessly wounded Gary Phyllis, an offence pursuant to s 35(4) of the Crimes Act.

3. The offender pleaded not guilty to both counts. The trial proceeded with a jury for five days.

4. On 22 February 2019, the fifth day of the trial, shortly before the defence closing address was due to commence, the offender pleaded guilty to the alternative count 2.

5. The maximum prescribed penalty for an offence pursuant to s 35 (4), Crimes Act of reckless wounding is seven years’ imprisonment. There is a prescribed standard non-parole period of three years. Having regard to the timing of the plea of guilty, I propose to allow a discount on sentence of 5%.

6. The offender has been in custody for one year four months and two days since 20 February 2018. After he was arrested on 7 February 2018, he served a balance of parole between 7 February 2018 and 29 February 2018. The commission of the current offence was the sole reason for the revocation of his parole. Having regard to that breach of parole, I propose to backdate the sentence to 20 February 2018.

Facts for sentence

7. In circumstances where the matter proceeded to trial and the Crown case had closed, it is agreed between the parties that the evidence called by the Crown at trial can form the basis of the factual findings on sentence.

8. I note at the outset that the offender did not give evidence in the trial and, in fact, there was no evidence called in the defence case. The Crown has included in exhibit A, a summary of the Crown case at trial as an aid for the Court in the fact finding exercise.

9. There is no dispute in relation to the background to the offending. There was a factual dispute at trial as to the conduct of the victim immediately before the offence was committed. It was the defence case at trial that the victim had first struck the offender before the offender ultimately wounded the victim.

10. For the purposes of sentencing, I find the following facts established beyond reasonable doubt.

11. As at 27 January 2018, the victim, Gary Phyllis aged 58 years was living in Umina Beach. He had been in an intimate relationship with Nicole Davies for about 13 years. As a result of that relationship they had two children.

12. During the afternoon of Australia Day 26 January 2018, Nicole Davies phoned the victim to ask if she could see the children. The victim agreed so long as she was not intoxicated and she did not bring the offender with her.

13. Shortly thereafter, Nicole Davies arrived at the victim’s house. She brought some clothes with her which she left at the victim’s house. The victim and Nicole Davies attended the Ettalong Beach Bowling Club that evening and consumed more alcohol. At about 10pm they left the Bowling Club and returned home.

14. Shortly after returning home, Nicole Davies requested money from the victim saying it was for marijuana. The victim believed that Nicole Davies wanted the money to buy ice. He refused to give her money. The victim left the house. He was followed by Nicole Davies and she chased him down the street. At approximately 10pm, the victim called triple-0 to say he was being chased by Davies down the street.

15. About two hours after the victim had called triple-0 he was in his lounge room when he heard a loud banging on the front door. At the front door was the offender and another male. They were saying, “We want Nicole’s stuff”. The victim told them to leave and they left. The back door was not locked. The victim went to his son’s bedroom and saw that his son, aged 12 years was playing on his PlayStation. As the victim walked back out of his son’s bedroom, he saw the offender standing in his lounge room. He started yelling at the offender, “What the fuck are you doing in here, get out”. The victim opened the front door telling the offender to get out. The offender told the victim that Nicole Davies wanted her things. The victim said, “Where’s Nicole anyway, tell her to come and get it”.

16. Whilst the offender was in the house, the victim’s son called triple-0. That call was made at 12.01am on 27 January 2018. The offender had told the victim that Nicole Davies was in the back of a car. The victim went out the front of the premises to a small car and saw Nicole Davies lying down in the back of it. He said to her, “Get the hell out of here and don’t come anywhere near me and the kids ever again”.

17. The victim then describes that as he was walking back inside, the offender came up from behind him and punched him in the mouth. The victim indicated that he tried to defend himself and he saw the offender pull out a knife. The victim described that he grabbed the offender’s arm to prevent being stabbed by the knife. The knife was described as having a blade approximately six inches in length.

18. Thereafter the victim struggled with the offender. During the struggle, the offender stabbed the victim around three times to the arm. The victim indicated that the male that was with the offender said, “Come on Matt, that’s enough”. The victim ran inside and saw his son who was still on the phone to the triple-0 officer at that stage.

19. The victim had some blood coming out of his mouth as a consequence of being punched in the mouth by the offender. The victim then sought help from his neighbour and identified to the neighbour that the person who had stabbed him was “Nicole’s boyfriend”.

Injuries sustained by the victim

20. The victim received a five centimetre wound to his left arm penetrating the dermis and involving the muscle belly (this injury cut a small artery), a three centimetre wound penetrating the dermis and involving the muscle belly, a one centimetre cut penetrating the epidermis but not the dermis and a small superficial injury to the left side of his lower lip. The victim was taken to Gosford Hospital and he was treated in theatre by having the wound irrigated, packed and dressed. He was admitted for further assessment and discharged on 30 January 2018.

21. As I indicated at the outset of the summary of the facts, it was the defence case at trial that, in fact, it was the victim that struck the offender first before the offender wounded the victim. There was no evidence from the offender at trial and, whilst there was evidence from Wade Brennan who was the male that accompanied the offender on this evening, to the effect that when he first saw the incident the victim was being physical with the offender, it is clear from his evidence at trial that he did not see the commencement of the offending. It is for those reasons I have found that there was no conduct of the victim towards the offender before the offender wounded the victim.

22. Those facts clearly disclose very serious objective criminality. Both general and specific deterrence are important considerations on sentence.

Assessment of objective seriousness

23. In assessing the objective seriousness, I have taken into account the following factors:

1. The nature of the violence inflicted upon the victim, namely a number of blows to the arm of the victim;

2. The wounds were inflicted by the use of a weapon, namely a knife;

3. The nature and extent of the injuries as summarised in the outline of facts; and

4. I am satisfied that the wounding was completely unprovoked by the victim.

24. Having regard to those factors, I assess the objective seriousness as being in the middle of the range.

Aggravating features

25. Ms Crown relied upon the following aggravating features. Firstly, the use of a weapon. In circumstances where I have taken that into account in assessing the objective seriousness, I do not propose to double count it.

26. Secondly, that the offending occurred in the home of the victim. I do accept that it occurred in the front yard of the victim’s home and that aggravating feature is established.

27. Thirdly, that the offender was on conditional liberty at the time. I accept that aggravating feature is established in circumstances where the offender was on parole.

28. Fourthly, that the offender has previous convictions for offences of violence. Whilst I do not take that fact into account as an aggravating feature, I will further outline the basis upon which it is relevant.

29. Fifthly, that the conduct was an act of gratuitous violence. In circumstances where I have taken into account that the conduct was completely unprovoked, I do not propose to take into account that it was an act of gratuitous violence as an aggravating feature. In my view, that would be to double count that particular feature.

Subjective circumstances

30. The offender is 36 years of age. He has a criminal history which is extensive. It commenced in 2001 when he was dealt with for offences of carry cutting weapon, goods in custody and enter vehicle without consent. In respect of those matters he received s 9 bonds.

31. In 2001, he was also dealt with for offences of common assault for which he received a s 12 suspended sentence for six months and a term of six months’ imprisonment for an offence of be carried in conveyance.

32. In 2003, he was dealt with for two offences of robbery in company. In respect of each of those matters, he was sentenced to a term of imprisonment of two years and six months with a non-parole period of 15 months.

33. In 2004, he was dealt with for resist police and sentenced to three months imprisonment, break enter steal and be carried in conveyance, six months imprisonment and malicious wounding, 12 months’ imprisonment.

34. In 2005, he was dealt with for take and drive conveyance and sentenced to five months’ imprisonment.

35. In 2006, he was dealt with for drive recklessly and take and drive conveyance. He received a total term at first instance of 15 months with a non-parole period of nine months. On appeal, that non-parole period was reduced to six months.

36. In 2007, he was dealt with for supply a prohibited drug and sentenced to two months’ imprisonment.

37. In 2008, for shoplifting, he was sentenced to one month imprisonment; break enter steal he was sentenced to nine months’ imprisonment; goods in custody, three months’ imprisonment.

38. In 2010, he was dealt with for two offences of armed robbery with offensive weapon. He was sentenced in respect of one of those matters to 61 months total term with 34 months’ non-parole and the second matter, 71 months total term with 39 months non-parole. In respect of an offence of break enter and steal he also received a sentence of 15 months’ imprisonment.

39. In 2015, he was dealt with for an offence of armed robbery with offensive weapon. He received a total term of three years’ imprisonment with a non‑parole period of 18 months.

40. In 2017, he was dealt with for the offence of steal from a person and sentenced to 12 months’ imprisonment with a non-parole period of eight months.

41. I am satisfied that the offender has manifested in the commission of this further offence a continuing attitude of disobedience of the law in which case retribution, deterrence and protection of the community indicate that a more severe penalty is warranted. It is clear that no sentence has deterred the offender so far from further violent offending: see Veen v R (No 2) [1988] HCA 14.

42. The following material was tendered on behalf of the offender:

Exhibit 1, Report of Lee Knight, clinical nurse consultant forensic mental health, 11 June 2019;

Exhibit 2 Letter from Wayback Ltd dated 13 August 2018 indicating that the offender had been accepted into rehabilitation, however, did not enter the rehabilitation in circumstances where he was not granted bail;

Exhibit 3, a list of the offender’s father’s medical conditions.

43. The offender’s background is outline in the report of Mr Knight.

44. The offender was born in Maitland. He identifies as Aboriginal. He has one younger brother who passed away at age 14 years from a cardiac issue. The offender’s parents separated when he was 11 years old.

45. He has a good relationship with his father who was in court during the sentence proceedings. His father, Mr Jack Wyatt, is currently unwell and the offender is unsure of his life expectancy. Exhibit 3 is an outline of the medical conditions suffered by the offender’s father.

46. The offender reported witnessing domestic violence as a child and he reported that he had been subjected to assaults. He grew up in the Muswellbrook area.

Education

47. The offender had some learning issues in primary school and his reading was poor. He was suspended in Year 7 after breaking school windows. He was expelled in Year 8 and did not return to formal education. The offender wanted to join the army but was unable to do so because he did not finish Year 10. He reported that he was a promising rugby league player between the ages of 13 and 17 years and played for the Newcastle Knights.

48. He said that that after his brother passed away, his use of illicit substances increased and this reduced his sporting ability. At 17 years of age, he commenced work as a diesel mechanic. His longest period of employment was three months. The offender has otherwise been unemployed.

Medical history

49. Mr Knight outlined the offender’s past medical history as follows:

“Mr Wyatt advised me that he was diagnosed with pneumonia in 2016 after smoking a nicotine patch. In 2017 he was diagnosed with an abscess on his lung after intravenously ‘diverting buprenorphine’. Both of these incidents occurred whilst he was incarcerated. Mr Wyatt stated that he suffered from hepatitis C, however, this is being treated by a new treatment available to inmates.

Mr Wyatt advised me that he had been ‘stabbed a few times’. He described having 11 stab wounds which he proceeded to show me. It included wounds to his neck, eye, forearms, back and thigh. He stated he had once suffered from a ‘punctured lung’ pneumothorax after being stabbed in the chest. Mr Wyatt alleged that he had been stabbed and had hot water thrown on him whilst in custody. He did not require any medical treatment for the injuries outside those available to him by Justice Health and Forensic Mental Health Network.

Mr Wyatt alleged that whilst he was using ice and benzodiazepine medications in custody he was tied to a bed and awoke whilst being raped. He stated that he was moved centres as a result of this attack. Mr Wyatt suffered a CVA in 2013 when he was aged 30. This was a brain stem infarct and Mr Wyatt reported that it was likely caused by stress. He was hospitalised for a term of around two weeks. He has a resulting traumatic brain injury.

He stated that whilst the CVA has affected his memory, he had not noticed any weakness or cognitive impairment. He stated that he thought he might have become more impulsive since suffering the CVA. Mr Wyatt showed me that he had missing bottom teeth and he alleged that was caused by being assaulted at the time of this offence”.

Substance use

50. The offender reported long-standing use of cannabis from 13 years of age and ice from 17 years every day including in custody. The offender is currently prescribed methadone. He reported that he has not used illicit substances for the past six months.

Mental state examination

51. Mr Knight reported that there was no evidence of any thought disorder although the offender did report symptoms of anxiety. Mr Knight was of the following opinion:

“Mr Wyatt suffers from stimulant use disorder in early remission in a controlled environment. He also suffers from a traumatic brain injury, however, it is not clear as to whether this meets the diagnostic criteria for mild neurocognitive disorder due to traumatic brain injury. By Mr Wyatt’s self-report, he has not suffered from a cognitive decline post CVA. There is no obvious evidence on assessment of significant cognitive impairment beyond that expected with his particular learning issues.

He may benefit from undergoing a neuro‑psychological assessment to determine the presence or absence of such diagnoses. It is clear that Mr Wyatt suffered a depressed mood with anxiety symptoms, however, these appear to be well controlled by anti-depressant medications.

With respect to a history of drug induced psychosis, it would appear that this symptomology has completely resolved, however, it would be prudent to monitor his mental state into the future given his vulnerability to psychosis”.

52. Mr Knight made a number of recommendations in relation to the ongoing treatment of the offender.

Prospects of rehabilitation

53. Having regard to the lengthy drug history and lengthy criminal history of the offender, I am satisfied that any view of his prospects of rehabilitation must necessarily be guarded. It is encouraging that he is addressing his drug issues whilst in custody. It is clear to me that there is a strong link between his drug use and his risk of re-offending. At this stage, I cannot find he is unlikely to re‑offend.

Remorse

54. The offender expressed remorse to Mr Knight. I give that evidence limited weight in circumstances where it was not on oath and the offender was not cross-examined: see Imbornone v R [2017] NSWCCA 144 per Wilson J at [57].

Special circumstances

55. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period pursuant to s 44 (2) of the Crimes (Sentencing Procedure) Act in circumstances where it is clear that the offender will need extensive supervision on parole to ensure that he does not relapse into drug use.

56. In all the circumstances, I am satisfied that special circumstances is established and I propose to vary the statutory ratio between the non‑parole period and the parole period.

Determination

57. I have had regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. Whilst there was no victim impact statement in this matter, I accept that this would have been a wholly terrifying experience for the victim and it would have had a devastating effect on both his emotional wellbeing and his feelings of safety. One of the purposes of sentencing is to recognise the harm done to the victim: see s 3A (g) of the Crimes (Sentencing Procedure) Act.

58. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5 (1) of the Crimes (Sentencing Procedure) Act.

59. I have had regard to the objective gravity of the offending. I have taken into account the relevant prescribed maximum penalty, the offender’s subjective circumstances and the prescribed standard non-parole period in accordance with s 54B (2) of the Crimes (Sentencing Procedure) Act.

60. Stand up, please, Mr Wyatt.

61. In relation to one offence of reckless wounding, you are convicted. I sentence you to a non-parole period of two years and two months to date from 20 February 2018 and expire on 19 April 2020 with a balance of parole of one year and one month expiring on 19 May 2021. The total term of the sentence is three years and three months. The starting point for the sentence was three and a half years which I have discounted by 5% for your plea of guilty.

57. I have also varied the ratio between how much time you spend in gaol and how much time you are on parole. So I have given you longer on parole on the basis that I am hopeful that you do seek treatment and assistance for your long-standing drug issues. You are still a relatively young person and I expect that you do not want to continue returning to custody.

58. So I am hopeful that you take the professional guidance and assistance you are given this time on parole and that you do attend meetings that you are required to attend with your parole officers so that they can offer you professional guidance and support. Will you just take a seat, please?

59. Just confirm those dates. So the total sentence is three years and three months, non-parole period two years two months. Your earliest date for parole is 19 April 2020.

60. Is there anything further?

61. BRACK: Your Honour, there is a matter on the 166 certificate. It is enter inclosed lands. It only carries a maximum penalty I think of five penalty units.

62. HER HONOUR: Is it be dealt with - just wait one moment, Mr Wyatt.

63. BRACK: I would expect so, your Honour, rather than have it--

64. HER HONOUR: So it is not a back-up offence?

65. BRACK: No, it is a related offence.

66. HER HONOUR: So do you want me to sentence the offender for that offence?

67. BRACK: Tab number 2 in the--

68. HER HONOUR: So the maximum was five penalty?

69. BRACK: Five penalty units.

70. HER HONOUR: So only a fine.

71. BRACK: Yes.

72. HER HONOUR: So in relation to the offence of enter inclosed lands on the s 166 certificate H67627474 sequence 1, I find the offence proved and pursuant to s 10A, no further penalty.

73. Does that complete the matter?

74. BRACK: It does, your Honour.

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Decision last updated: 12 September 2019