Regina v Michael Phillip Bottom; Regina v Phillip Camilli

[2016] NSWDC 210

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Regina v Michael Phillip Bottom; Regina v Phillip Camilli [2016] NSWDC 210
Hearing dates:	9 September 2016
Date of orders:	12 September 2016
Decision date:	12 September 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	Bottom 1. The offender is convicted. 2. In relation to count 1, I impose a sentence of imprisonment consisting of a non-parole period of 6 months commencing from 6 September 2015 and a head sentence of 9 months. 3. In relation to count 2, I impose a sentence of imprisonment consisting of a non-parole period of eight months commencing from 6 December 2015 and a head sentence of 1 year. 4. In relation to count three, I impose a sentence of imprisonment consisting of a non-parole period of 1 year commencing from 6 June 2016 and a head sentence of 1 year 6 months. 5. In relation to count for, I impose a sentence of imprisonment consisting of a non-parole period of 2 years commencing from 6 December 2016 and a head sentence of 3 years and 9 months. 6. The overall effective sentence I impose consists of a non-parole period of 3 years 3 months commencing on 6 September 2015 and a head sentence of 5 years. Mr Bottom will become eligible to be released on parole on 5 December 2018. 7. Mr Bottom is an eligible convicted offender within the meaning of section 5A Drug Court Act 1998. I direct that he be referred to the Drug Court to determine if he should be the subject of a compulsory drug treatment order. Camiili 8. I impose a sentence of imprisonment consisting of a non-parole period of 1 year and 7 days commencing on 5 September 2015 and a head sentence of 2 years. I direct that Mr Camilli be released to parole forthwith.
Catchwords:	CRIINAL LAW – offence - plea of guilty – assault – common assault – affray - destroy or damage property – reckless wounding in company – maliciously destroy or damage property in company – throw missile at police in execution of duty SENTENCE – mitigating factors – aggravating factors – circumstances – level of objective seriousness – specific deterrence – general deterrence – appropriate penalty – culpability SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty– back-up charge
Legislation Cited:	Crimes Act 1900 ss 35(3), 60(1), 61, 93C, 93C(2),195 (1)(a), 195(1A)(a), s.546C Crimes (Sentencing Procedure) Act 1999 ss 3, 3A, 5, 21A(2)(c),21A(2)(d), 21A(3)(h), 21A(3)(i), 21A(3)(k) Drug Court Act 1998 s.5A
Cases Cited:	R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Hili v The Queen (2010) 242 CLR 520 R v Matzick [2007] NSWCCA 92 R v Watt, Unreported 2 April 1997, NSWCCA R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346 R v Todorovic [2008] NSWCCA 49 R v Dickinson [2004] NSWCCA 457 R v Hampton [1999] NSWCCA 341 R v Fernando (1992) 76 A Crim R 58 Bugmy v R (2013) 249 CLR 571 R v McNaughton (2006) 66 NSWLR 566
Category:	Sentence
Parties:	Regina (The Crown) Michael Phillip Bottom (Offender) Phillip Camilli (Offender)
Representation:	Counsel: Mr K Averre (Bottom) Mr B Robinson (Camilli)     Solicitors: C Hyland, Solicitor for Public Prosecutions (The Crown) Blair Criminal Lawyers (Bottom) Powerhouse Law Australia (Camilli)
File Number(s):	2015/00261086 (Bottom)2015/00261028 (Camilli)

Judgment

1. Michael Phillip Bottom appears for sentence after he pleaded guilty in the Local Court to the following charges:

Count 1 damage property in company contrary to section 195(1A)(a) Crimes Act 1900. The maximum penalty for Count 1 is 6 years imprisonment;

Count 2 throw missile at a police officer in the execution of his duty contrary to section 60(1) Crimes Act 1900. The maximum penalty for Count 2 is 5 years imprisonment.

Count 3 damage property contrary to section 195(1)(a) Crimes Act 1900. The maximum penalty for Count 3 is 5 years imprisonment; and

Count 4 reckless wounding in company contrary to section 35(3) Crimes Act 1900. The maximum penalty for Count 4 is 10 years imprisonment. The offence also carries with it a standard non-parole period of 4 years.

2. Mr Bottom also asks the Court to take into consideration two counts of common assault contrary to section 61 Crimes Act 1900 and one count of resist a police officer in the execution of his duty contrary to section 546C Crimes Act 1900, on a Form 1. The maximum penalty for the assault offences is 2 years imprisonment. The maximum penalty for the resist police officer charge is 12 months imprisonment and or a fine of $1,100.

3. Phillip Camilli appears for sentence after he pleaded guilty in the Local Court to one count of affray contrary to section 93C Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment. Mr Camilli also asks the Court to take into consideration one count of damage property in company contrary to section 195(1A)(a) Crimes Act 1900 on a Form 1. The maximum penalty for the Form 1 offence is 6 years imprisonment.

Facts

4. The parties presented an Agreed Statement of Facts that can be summarised as follows.

5. On 5 September 2015 Christopher Stamatelopoulos was driving his Toyota Hilux in Haberfield with his friends Anthony Nasr (sitting in the front passenger seat) and Andrew Geige. At around 7.20pm, the vehicle stopped in the second lane at traffic lights at the intersection of Wattle Street and Ramsay Street in Haberfield. The front passenger window was open, and loud music was playing inside the car.

6. At 166 Ramsay Street, a number of people were sitting on a fence outside a block of units including Robert Napoli (who resided at Unit 3), his girlfriend Alice Lyons, and the offenders Mr Bottom and Mr Camilli.

7. Mr Bottom stood up and yelled at the people in the car asking them what they had said. Mr Nasr responded by yelling “What?” The offenders began to approach the vehicle and Mr Stamatelopoulos locked the doors. Mr Bottom leaned through the open window and attempted to punch Mr Nasr, however he leaned back out of the reach of Mr Bottom. Mr Nasr yelled “fuck off” at Mr Bottom who yelled abuse back at him.

8. Mr Stamatelopoulos attempted to close the electric window electronically but was unable to do so as the offenders were holding it down.

9. The offenders struck the car with their fists resulting in the side mirror breaking off the vehicle and the front head light protector being smashed.

10. When the traffic lights turned green Mr Stamatelopoulos drove away and the offenders with Mr Napoli returned to the unit block.

11. Mr Stamatelopoulos parked the vehicle a short distance away and called his brother in law Ninos Sarkees. He described the incident and Mr Sarkees said that he would come to meet him. Mr Stamatelopoulos then called his father Ioannis Stamatelopoulos who also said that he would come and meet him.

12. Mr Stamatelopoulos then inspected his vehicle and noticed the damage to his car. He used tape to reattach the wing mirror to the car.

13. At around 8.30pm, Mr Sarkees and Mr Ioannis Stamatelopoulos met Christopher Stamatelopoulos, Mr Nasr and Mr Geige. They returned to the unit block at 166 Ramsay Street, and at 8.37pm as they approached the driveway Christopher Stamatelopoulos called 000. The men stood in the driveway and called up to the offenders to try and get them to come down. They heard a female voice yell “back off” at them.

14. The offenders, armed with knives, and Mr Napoli came to the driveway. Mr Napoli attempted to calm the situation.

15. The offenders ran towards Christopher Stamatelopoulos, Mr Nasr and Mr Geige. At 8.38pm, Mr Nasr again called 000. A witness observed a man from the Stamatelopoulos group to be holding something resembling a foot long metal wrench. Christopher Stamatelopoulos, Mr Nasr and Mr Geige ran from the scene.

16. The offenders then turned to Mr Sarkees and Ioannis Stamatelopoulos, and Mr Bottom shoulder-charged Ioannis Stamatelopoulos causing him to fall to the ground and become dizzy.

17. Mr Sarkees tried to assist Ioannis Stamatelopoulos by grabbing Mr Bottom around the torso and throwing him towards a fence. Mr Bottom cut Mr Sarkees across the forehead with the knife which caused him to bleed profusely. Mr Bottom continued to thrust the knife towards Mr Sarkees who grabbed his wrist and suffered cuts to the hand. Mr Sarkees then punched Mr Bottom in the face.

18. At this time, Mr Camilli approached from behind and used the butt of his knife to strike Mr Sarkees on his right cheek. Ioannis Stamatelopoulos intervened and attempted to pull the offenders away from Mr Sarkees. Mr Sarkees turned back towards Mr Bottom who stabbed him in the right shoulder. The offenders then ran back into the unit block.

19. Mr Sarkees sustained the following injuries:

1. 7cm long laceration to the right side of his forehead (breached the epidermis and dermis to adipose tissue);

2. 1.5cm long laceration to the right superior border of the trapezius (breached the epidermis and dermis);

3. 2cm long laceration to the right cheek; and

4. Small lacerations to two fingers on his left hand.

20. Mr Sarkees was assessed by paramedics who determined that urgent closure was not necessary prior to being conveyed to hospital.

21. Police arrived shortly after a third call was made to 000 by Christopher Stamatelopoulos at 8.44pm.

22. Police set up a perimeter around the unit block, and requested that the door of Unit 3 be opened. Police attempted to force entry into the unit but were told “Fuck off or I’m going to shoot you”. Subsequent to this police set up a command post with road block and expanded the perimeter.

23. At some point Mr Bottom climbed from the unit into the ceiling space.

24. At about 11pm, officers from the Tactical Operation Unit (TOU) gained entry into the unit where they arrested Mr Camilli and 3 others. Mr Bottom could not be located.

25. The TOU officers used a camera, mounted on a pole to gain a visual of Mr Bottom in the ceiling space. Mr Bottom struck the camera, thereby disabling it. The officers sprayed OC spray into the roof cavity however this did not subdue Mr Bottom.

26. Mr Bottom then removed roof tiles and climbed onto the roof. He threw tiles against the roof causing them to break into smaller pieces. This resulted in the creation of a large hole in the roof. He then began to throw these broken roof tiles at Constable Elliot Housego, and the tiles shattered on impact with the ground. The estimated cost of repairs to the roof and roof cavity was $20,000 with an insurance excess of $1,000.

27. At around 5am on 6 September 2016, Mr Bottom climbed back through the roof cavity and appeared to be surrendering to police. When Leading Senior Constable Immens and Constable Leo attempted to place Mr Bottom under arrest, he began to violently kick his legs to resist arrest and was successful in momentarily breaking free before being tasered.

Mr Bottom’s evidence on sentence

28. Mr Bottom relied on a report of Ms Chelsey Dewson, forensic psychologist, dated 5 September 2016. That report can be summarised as follows.

29. Ms Dewson met with Mr Bottom for approximately 2 hours on 18 August 2016 for the purpose of preparing the report. She described him as being engaged and cooperative, and expressing his thoughts clearly and logically. She further described him of being of low to average intelligence, but noted that he showed insight into his circumstances.

30. Mr Bottom gave a history that he is an only child and lived with both of his parents until he was aged 18, at which time they separated. He continued to live with his mother as an adult until his father returned to live with them. His father died approximately two and a half years ago from bowel cancer. Mr Bottom reported that as an only child he liked things to go his way and experienced difficulty with authorities.

31. Mr Bottom reported that his father had abused alcohol and was violent towards him and his mother. He saw his father hit his mother numerous times and the police often attended their home. Mr Bottom reported being hit over the head by his father with a bat, resulting in his head being split open requiring medical attention. He told Ms Dewson that he felt ‘on guard’ whenever he was at home.

32. Mr Bottom reported having been exposed to inappropriate sexual discussion and questioning over a period of 15 years by his football coach. He was not physically interfered with.

33. Mr Bottom told Ms Dewson that he had few rules as a child, with his mother having no control over him. Despite his mother’s attempts at discipline, she was unable to enforce punishment. His father would be inconsistent in enforcing rules, and would generally use physical violence to discipline him.

34. Mr Bottom reported having a good relationship with his mother who he described as being supportive and caring.

35. Mr Bottom’s father was incarcerated when he was in his early teens. Mr Bottom engaged in antisocial behaviour throughout his teenage years and into adulthood.

36. Mr Bottom had a chaotic schooling experience and did not know how many schools he attended. His attendance at school was poor. He regularly engaged in fights, resulting in him being suspended and expelled on a number of occasions. He reported enjoying the ‘adrenalin rush’ that came with physical fights, and started fights to experience that rush. He also used fighting as an attention seeking mechanism.

37. Mr Bottom reported having completed a Certificate III in Personal Training and receiving some casual work experience in the fitness industry. However, his drug abuse often interfered with his ability to perform at work and he had failed to turn up to work and job interviews in the past due to intoxication. His longest period of employment has been for 6 months as a labourer. Mr Bottom told Ms Dewson that he could not recall ever having seen his father work.

38. Mr Bottom has been reliant on welfare payments and has supplemented those payments by performing odd jobs, and from winnings on poker machines. He indicated that he does not particularly want to work, but has some interest in working in the fitness industry. When he lived with his mother he put money towards household expenses, however was not formally required to do so by his mother.

39. As a child, Mr Bottom was diagnosed with Attention Deficit Hyperactivity Disorder for which he was prescribed the medication, Ritalin. He took this medication for around 7 years before ceasing to take it in his early teens. He experienced difficulty sitting for long periods, difficulty concentrating and impulsive behaviour; all of which interfered with his education.

40. Mr Bottom reported to having lost consciousness 10 times from physical fights, and countless times from substance abuse. His most significant head injury was as a result of being kicked in the head during a drunken fight. He had only limited recollection of the fight, but remembered waking up a few days later in hospital. He suggested that he had sustained life threatening injuries during the fight.

41. Mr Bottom reported having many friends, but no close friends. He explained that he kept his friends distant during his younger years to hide his father’s alcoholic and abusive nature. He became caught up in his friends’ antisocial and criminal activity, and could not recall having friends who would promote a crime free life. As an adult he described having transient friendships, feeling generally detached from others. He has had 6 or 7 romantic relationships, none of which have been serious due to his inability to express himself emotionally, and desire to avoid sharing things in his life. Mr Bottom reported only trusting his mother.

42. Mr Bottom commenced using alcohol at 8 years of age, and was consuming alcohol daily by his teens. He would drink over 15 units of alcohol per day in order to become intoxicated. When he was aged between 14 and 17 years, he smoked cannabis approximately 4 times per week, and in his late teens experimented with heroin. Mr Bottom reported using heroin daily from his late twenties up to the time of the offence. Mr Bottom has previously used crystal methamphetamines and has found that these make him aggressive. He reported having used ice on the day of the offence. Prior to his incarceration, Mr Bottom was taking methadone on days that he could not obtain heroin. He reported periods of sobriety when he has been in gaol in the past.

43. Mr Bottom described his substance use as being motivated by a desire to self-medicate to cope with the emotional consequences of his troubled home life. He reported some desire to Ms Dewson to cease substance abuse, however appeared to her to be uncertain as to the likelihood of succeeding in this aim. He acknowledged to Ms Dewson that he understood that his substance abuse problems contribute to his offending behaviour. Ms Dewson opined that Mr Bottom’s polysubstance abuse is directly related to his criminal activity.

44. Mr Bottom accepted responsibility for his offences to Ms Dewson, and acknowledged that the offences were serious.

45. Mr Bottom reported that he was “going okay” in prison, and Ms Dewson opined that it is unlikely that he would find incarceration more challenging than other inmates.

46. Ms Dewson reported that Mr Bottom has a paranoid style of personality, although it is at a subclinical level and does not operate as a pervasive disorder.

47. Ms Dewson recommended that, if incarcerated, Mr Bottom participate in the Violent Offenders Therapeutic Program, and substance abuse programs such as Getting SMART and SMART Recovery. It was further recommended that reintegration into the community following the period of incarceration should be gradual, for instance by allowing Mr Bottom access to day release programs.

48. Ms Dewson opined that if Mr Bottom was not incarcerated that it is unlikely that there would be programs of sufficient intensity to address his offending behaviour, however that ongoing treatment with a psychologist experienced in treating violent offenders would be beneficial. Further, she recommended that he should be subject to routine urinalysis to monitor abstinence from substance use.

49. Ms Dewson recommended that Mr Bottom be assisted in relation to finding employment and developing support systems to promote a healthy and crime-free lifestyle.

Mr Camilli’s evidence on sentence

50. Mr Camilli relied on a report of Dr Richard Furst, forensic psychiatrist, dated 21 August 2016. The report can be summarised as follows.

51. Mr Furst met with Mr Camilli for approximately 1 hour on 20 July 2016 for the purposes of preparing the report. Dr Furst found Mr Camilli’s mood and affect to be ‘noticeably blunted’ which he noted as being consistent with a schizophrenic illness. He did not exhibit any psychotic symptoms, severe depression or mood elevation, or cognitive impairment.

52. Mr Camilli was born in Sydney and grew up in Merrylands and Burwood Heights. He attended school until year 10 and was suspended on a couple of occasions. He began having trouble with the police in his late teens.

53. Mr Camilli reported to falling in with a pro-criminal group of friends at age 12, describing the other group members as being like brothers. He began drinking alcohol at a young age, and from about the age of 17 used cannabis, ecstasy and cocaine. Mr Camilli used ecstasy every weekend for around 6 months, describing it as “like an escape”. He has used heroin once or twice, and has abused Buprenorphine, an opiate. He has used ice over a number of years and would find himself awake for days at a time as a consequence of using the drug.

54. The relationship of Mr Camilli’s parents was characterised by regular conflict and domestic violence. His mother suffered from chronic mental illness, namely schizoaffective disorder, and was regularly violent towards his father. His father was not violent towards his mother. At times Mr Camilli would reside in refuges to avoid the family violence.

55. When Mr Camilli was 15 years of age, his father died of cancer. His mother died in December 2015 while he was in custody.

50. When he was around 18 years of age, Mr Camilli began experiencing persistent paranoid thoughts and was admitted to Concord Hospital for approximately 2 weeks. He was treated with Seroquel and follow up treatment with the Croydon Community Mental Health Team was arranged.

51. Since that time, Mr Camilli has had nearly 30 admissions to Concord Hospital. These admissions were initially for drug-induced psychosis, however he was later diagnosed with schizophrenia. He has been treated with injections of antipsychotic medications. Mr Carmilli also suffers from mood swings and difficulty thinking clearly.

52. Dr Furst noted that despite treatment, Mr Carmilli’s continued use of ice and cannabis have exacerbated his symptoms of schizophrenia.

53. Mr Carmilli reported to Dr Furst remembering little about the offence due to being under the influence of ice and alcohol at the time. He said he felt lost and was psychotic. He expressed remorse to Dr Furst and additionally remarked that the offence would not have occurred if he had not been under the influence of drugs and alcohol.

54. Over the three months prior the Dr Furst’s consultation with Mr Camilli he had moved between MRRC, John Morony Correctional Centre and Long Bay Hospital. While at John Morony Correctional Centre, Mr Camilli used Buprenorphine and ice. This drug use caused him to experience psychotic symptoms and grandiose delusions, and resulted in him being admitted to Long Bay Hospital as an involuntary patient.

55. Mr Camilli reported experiencing a vast improvement in his paranoid symptoms and mood. He expressed a desire to take medication to avoid further relapse into mental illness.

56. Mr Camilli told Dr Furst that he intends to continue seeing the Croydon Community Mental Health Team when he is released. He wished to begin treatment with Opioid Replacement Therapy to address his issues with Buprenorphine use. He told Dr Furst that he had inherited money from his mother and intended to buy a van following his release to allow him to undertake work as a courier.

57. Dr Furst diagnosed the offender as suffering from schizophrenia, substance use disorder (in relation to methyl-amphetamine, cannabis, opiates and alcohol). Dr Furst opined that Mr Camilli lacks insight into his illness when he is unwell, noting his need for community treatment orders and involuntary detention for treatment of his mental illness in the past.

58. Dr Furst noted that Mr Camilli had a history of trauma, abuse and neglect as a child causing him to experience anxiety, low self-esteem and poor adjustment to stress. His social and emotional issues have been made more difficult due to his mental illness, homelessness and lack of social support. Dr Furst opined that Mr Camilli’s drug and alcohol intoxication at the time of the offence and poor judgment due to schizophrenia were likely to have driven him to commit the offences. Dr Furst opined that the use of alcohol and ice destabilised Mr Camilli’s mood and brought on acute symptoms of psychosis. This would make it difficult for Mr Camilli to think logically, control himself and could lead him to becoming aggressive.

59. Dr Furst opined that Mr Camilli was a moderate risk of re-offending, and required assertive treatment and ongoing case management. He noted that Mr Camilli will require supported accommodation and a Community Treatment Order when he is released on parole. He further suggested that Mr Camilli would be assisted by drug and alcohol counselling and treatment, psycho-education, and access to vocational training and work opportunities.

60. Mr Camilli also relied on a number of discharge summaries from Concord Hospital that demonstrated that he had attended for assessment and treatment of his mental condition a few weeks before the offence was committed.

Consideration

Objective seriousness of the offences committed by Mr Bottom

67. The offending conduct was started by Mr Bottom. He took it upon himself to take offence to the victims playing loud music in the car while travelling on a major thoroughfare. The victims were stopped at the traffic lights. Their presence was going to be temporary. Mr Bottom’s attempt to assault one of the victims through the window of the vehicle demonstrated a significant level of aggression that was completely unjustified.

68. The attack was continued by both offenders on the vehicle. Their continuation of the attack displayed a significant level of aggression, resulting in relatively minor damage to the vehicle. The offence was committed in company.

69. The offenders continued to escalate the use of violence by arming themselves with knives, prior to coming out of the unit to confront the victims.

70. The wounds to Mr Sarkees included a 7 cm long laceration to the right side of his forehead that penetrated the outer and inner layers of his skin and underlying connective tissue, 1.5 cm long laceration in his back that penetrated the outer and inner layers of the skin, a 2 cm long laceration to the right cheek and small lacerations to 2 fingers on his left hand. Whilst those wounds did not require urgent closure at the scene I am satisfied beyond reasonable doubt that at least the first 2 required sutures. There is no up to date information as to the state of the victim’s recovery.

71. The degree of violence used in the attack was significant. The offenders ran towards the victims with the knives. After some of the victims group ran from the scene the offenders turned toward those who were left. The use of a knife is a feature which specially aggravates the seriousness of an offence. The presence of a knife in an emotionally charged situation increases the danger situation and the penalty which is liable to be imposed.

72. There were some limited planning and premeditation in the offence established by the offender taking the knives to confront the victims. By his plea of guilty Mr Bottom accepts that he acted with reckless intent. By the way in which he swung the knife in close proximity to Mr Sarkees and then stabbed him in the back, I am satisfied beyond reasonable doubt that he was reckless to the fact that Mr Sarkees would be wounded.

73. The offence was unprovoked and unjustified: R v Matzick [2007] NSWCCA 92 at [23].

74. Mr Bottom then sought to evade the police by climbing into the roof cavity of the unit block and proceeding to climb into the roof. He then used the roof tiles as missiles to throw at the police and this caused the damage for count 3. The facts do not state how close the missiles came to the police officer or the level of threat posed by this conduct. The damage that resulted was significant.

75. Counts 3 and 4 are in the mid-range of objective seriousness and counts 1 and 2 are in the low range of objective seriousness.

Objective seriousness of the offence committed by Mr Camilli

76. The objective seriousness of the offence of affray committed by Mr Camilli is to be considered by reference to the conduct of both Mr Bottom and Mr Camilli: section 93C(2) Crimes Act 1900. The amount of unlawful violence demonstrated by both of the offenders was substantial and could have caused members of the public considerable alarm.

77. The offence is approaching the mid-range of objective seriousness.

Deterrence

78. Offences of personal violence are viewed very seriously by the courts. Deterrence is an important consideration particularly in cases of unprovoked attacks involving a weapon. Any assault involving the use of the knife must be regarded as calling for a significant sentence, for the purposes of both general and specific deterrence to be given any effect: R v Watt (unreported 2 April 1997, NSWCCA). Offences involving the assault of police officers in the execution of their duty are serious offences that require a significant element of deterrence in the sentence that is to be imposed. The community has a rightful expectation that the Courts will impose penalties for these offences that demonstrate they are serious and will attract serious punishment.

79. In Mr Bottom’s case there is a need for specific deterrence. R v Engert (1995) 84 A Crim R 67 at 68. Mr Bottom has a history of offences of violence and he needs to address his offending behaviour. The most direct cause of Mr Bottom’s offending conduct on the day was his use of the drug ice. Addiction is not normally an excuse for committing offences, but considered to be a choice: R v Henry (1999) 46 NSWLR 346. In this case, Mr Bottom became addicted to alcohol at about 8 years of age and thereafter progressed to the abuse of drugs. At the time of his introduction to drugs and alcohol he did not have the capacity to make an informed choice: R v Todorovic [2008] NSWCCA 49. He has not yet taken up any opportunity to participate in rehabilitation. Under the influence of drugs, Mr Bottom presents a danger to the community and he must address his drug use.

80. In Mr Camilli’s case, deterrence can be afforded less weight as a result of his mental condition because he is not an appropriate person to be made an example of. The nature and extent of his mental condition was such that he abused drugs to help him cope with the symptoms of schizophrenia. He became involved in the offence because he was there at the time, intoxicated and his ability to think logically about the ramifications of his actions was significantly impaired. In my view, his moral culpability for the offence was reduced. It is apparent from his custodial history that he has found his time in gaol difficult and he has spent an extended period as an involuntary patient following episodes of psychosis and delusions of grandeur.

81. There is still some need for specific deterrence in Mr Camilli’s case. Whilst this is his first substantial time in custody, he has a history of non-compliance with his Community Treatment Order that has led him into trouble with the authorities. The punishment imposed on him needs to indicate to him that if he persists in committing serious offences that he will face punishment.

Aggravating factors

82. The offences involved the actual use of a weapon: section 21A(2)(c) Crimes (Sentencing Procedure) Act 1999. The Court of Criminal Appeal has frequently observed that the use of a knife is a feature that specially aggravates the seriousness of an offence: R v Dickinson [2004] NSWCCA 457 at [23]. The presence of a knife in an emotionally charged situation increases the danger and the penalty which is liable to be imposed: R v Hampton [1999] NSWCCA 341 at [10].

83. Mr Bottom has a record of previous convictions, including serious personal violence offences: section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. Mr Bottom has previously been given custodial sentences for offences including affray, intimidation of a police officer, use of an offensive weapon to prevent investigation and two counts of maliciously inflict grievous bodily harm. On the last of these charges Mr Bottom was sentenced to 8 years imprisonment with a non-parole period of 4 years.

84. Prior convictions are pertinent to deciding where, within the boundaries set by the objective circumstances, a sentence should lie: R v McNaughton (2006) 66 NSWLR 566 at [26]. It cannot be said in the present case that the offences before the Court were isolated. Rather it appears that the offender has a continuing attitude of disobedience of the law, which I accept has been as a result of his drug use. Prior convictions should not be taken into account in such a way to punish the offender again for those earlier matters, but in this case they do not assist the offender in affording to him any particular leniency.

Mitigating factors

85. Mr Camilli has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr Camilli has previously engaged in appropriate treatment for his mental condition in the community. At the time of the offence he was homeless and was experiencing a lack of community support. His parents are both deceased. He is presently the subject of a Community Treatment Order and has been discharged from Long Bay Hospital and returned to Silverwater Correctional Centre. Arrangements have been made for him to reside in a boarding house at Surry Hills and to undergo treatment at St Vincent’s Hospital. His relapse into drug use leading to the offence was derived from a lack of support. I am satisfied that his experience in custody has brought home to him the dangers he faces with the use of illicit substances as a result of their effect on his mental functioning. I am satisfied on the balance of probabilities that he is motivated to comply with his Community Treatment Order and to find work as a courier driver and that he has good prospects of rehabilitation.

86. Mr Camilli has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Camilli expressed remorse to Dr Furst and I accept on the balance of probabilities that he has expressed genuine remorse and contrition.

87. Mr Bottom has demonstrated remorse. Mr Bottom expressed remorse to Ms Dewson and I accept on the balance of probabilities that he has expressed genuine remorse and contrition.

88. The offenders entered a plea of in the Local Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R vBorkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount for the plea of guilty is 25%.

Other matters

89. Mr Bottom’s addiction to drugs and alcohol at a very early age at this should be considered as a mitigating factor, because such addiction could not be classified as personal choice: R v Todorovic [2008] NSWCCA 49. Whilst it is usual for the rehabilitative aspects of sentencing to assume a more significant role in those circumstances, unless and until Mr Bottom deals with his drug issues this must be balanced against the protection of the community.

90. I am satisfied that Mr Bottom had a dysfunctional upbringing and home life in which he was exposed to the abuse of alcohol as well as physical violence. He has been deprived of education and employment opportunities. In this case, the offender’s deprived background is a matter that should be considered as a matter that mitigates the sentence imposed: R v Fernando (1992) 76 A Crim R 58 and Bugmy v R (2013) 249 CLR 571.

Sentencing statistics and comparable cases

91. I have been referred to the sentencing statistics for the offences with which I am dealing. I have taken into account the limitations on the use of such materials: Hili v The Queen (2010) 253 CLR 58 at [18].

92. I have had regard to the fact that each of the offences were capable of being dealt with in the Local Court. In my view, the Crown was right to require the reckless wounding charge to be dealt with in the District Court by reference to Mr Bottom’s prior criminal history.

No alternative to imprisonment

93. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

Penalty – Mr Bottom

94. The appropriate terms of imprisonment are as follows:

Count 1      1 year

Count 2      1 year and 4 months

Count 3      2 years

Count 4      5 years

Each term will be discounted by 25% to reflect the plea of guilty.

95. I find that there are special circumstances, by reason of the need for rehabilitation to deal with his substance abuse. The offender will benefit from an extended time on parole to assist with his reintegration into the community, in particular vocational training and assistance with the provision of stable housing.

Sentence – Mr Bottom

96. The offender is convicted.

97. In relation to count 1, I impose a sentence of imprisonment consisting of a non-parole period of 6 months commencing from 6 September 2015 and a head sentence of 9 months.

98. In relation to count 2, I impose a sentence of imprisonment consisting of a non-parole period of eight months commencing from 6 December 2015 and a head sentence of 1 year.

99. In relation to count three, I impose a sentence of imprisonment consisting of a non-parole period of 1 year commencing from 6 June 2016 and a head sentence of 1 year 6 months.

100. In relation to count for, I impose a sentence of imprisonment consisting of a non-parole period of 2 years commencing from 6 December 2016 and a head sentence of 3 years and 9 months.

101. The overall effective sentence I impose consists of a non-parole period of 3 years 3 months commencing on 6 September 2015 and a head sentence of 5 years. Mr Bottom will become eligible to be released on parole on 5 December 2018.

Referral to the Drug Court

102. Mr Bottom is an eligible convicted offender within the meaning of section 5A Drug Court Act 1998. I direct that he be referred to the Drug Court to determine if he should be the subject of a compulsory drug treatment order.

Penalty – Mr Camilli

103. The appropriate term of imprisonment is one of 2 years and 8 months that will be discounted by 25% to reflect the plea of guilty.

104. I find that there are special circumstances by reference to Mr Camilli’s mental condition and the availability of more suitable treatment in the community and because this is his first significant period in custody.

105. I impose a sentence of imprisonment consisting of a non-parole period of 1 year and 7 days commencing on 5 September 2015 and a head sentence of 2 years. I direct that Mr Camilli be released to parole forthwith.

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Amendments

09 March 2017 - Paragraphs 8, 13, 15, 26 amendment of typographical errors

Insert new paragraph 87 missing from original transcription of judgment

Decision last updated: 09 March 2017