R v Caleb James O'CONNOR aka John COBLE

District Court of NSW|2013-11-29

Introduction 1On the 14th of May 2012, after a trial at Campbelltown District Court, a jury found Caleb O'Connor, the offender, guilty of 3 serious charges: that on 19 February 2011 at Campbelltown he (i)Attempted to choke AF with the intention of enabling himself to commit an indictable offence, namely to intimidate AF. s 37 Crimes Act - Maximum penalty 25 years. (ii)Attempted to choke AF with the intention of enabling himself to commit an indictable offence, namely to intimidate AF. s 37 Crimes Act - Maximum penalty 25 years. (iii)Had sexual intercourse with AF, without her consent, and knowing she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that for a period before the offence, he did deprive AF of her liberty. s 61J Crimes Act - maximum penalty 20 years, Standard Non-Parole Period (SNPP) 10 years.

Objective circumstances 2I have used the initials AF rather than use the name of the victim, not in anyway to dehumanise her but because these proceedings normally require evidence to be given in-camera and the Court has received no notification that AF wishes her name to be used. 3There are also before the Court a number of matters on a Form 1, which I am asked to take into account. Those matters concern dishonesty offences and also breach of an Apprehended Violence Order which occurred during 2011. Those matters are set out fully in the Crown bundle, exhibit A at (4) and (5). They were, particularly a break and enter matter, offences of some seriousness. That offence, had it proceeded to sentence before me, would have merited some measure of independent punishment upon which the present matters would be accumulated. 4When matters are dealt with on a Form 1 it does provide a degree of convenience both to the accused, the police and the prosecution, but when matters are dealt with this way recognition has to be made in the sentence to the matters on the Form 1if dealt with separately. Some of them would have been totally concurrent and some of them would have led to a greater total penalty. Here, they do operate to increase the sentence that would be otherwise appropriate, so much was made clear by the High Court in Markarian v The Queen (2005) 228 CLR 357. 5Such an increase operates to recognise the need for personal deterrence and retribution for the crime which is before the Court for sentence, as was pointed out in the guideline judgment from 2002 by Spigelman CJ. This does not mean that the Court is imposing a separate penalty for the Form 1 offences, the sentence that I indicate and impose in relation to count 3 must be for the specific count before the Court for sentence, not the matters on the Form 1. Rather, they form part of the instinctive synthesis approach to sentencing as explained by McHugh J in Markarian and was recently reaffirmed by the Chief Justice of New South Wales, Bathurst CJ in Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115. A court takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender has been convicted, and I will do so in relation to count 3. 6Returning now to the objective circumstances of the offences for sentence. AF's evidence was compelling. It was supported by recent and consistent complaint. It was corroborated by medical evidence and crime scene evidence. The following summary does not include all the conversations and details. It cannot do justice to the terrible events of 19 February 2011. It provides a bare outline of the facts, which I find established beyond reasonable doubt and upon which, consistent with the jury's verdicts, the offender must be sentenced. 7In 2010 AF met the offender and formed an intimate boyfriend-girlfriend relationship with him. On the evening of 18 February 2011 they went out together to two local clubs before returning to AF's home in Campbelltown. By then it was early in the morning of 19 February. It had been a long night. Both had been drinking. AF went to her bedroom upstairs in the house. She put on the fan. She took off her dress and wearing her underwear hopped into bed intending to sleep. Soon after Mr O'Connor joined her. He indicated his amorous intentions. He was rebuffed. AF said "no", telling him she was too tired and not feeling well. 8The offender then straddled her. He put his hands around her neck and choked her. His actions caused her to fall off the bed and hit her head on the base of the fan. The offender stopped what he was doing. He went to the bathroom off the bedroom. AF went downstairs to the kitchen. The offender joined her. Eventually they both returned to bed. He fell asleep but she remained awake, thinking about what had occurred. She said she was torn between her feelings for the offender and her emotional upset about what he had done to her. 9After a period she woke him and asked him to leave. He was reluctant to go. They dressed and they went downstairs and talked. He would not leave. At one stage she picked up a knife. She collected some of his things from the flat and went outside and got some of his things from the car. She made it clear to him she did not want him to stay. He did not leave. She went to walk outside. As she did he grabbed her with both hands around her throat. He lifted her from the ground and pushed her from the doorway to a nearby lounge. She told the jury it felt a thousand times worse than the earlier occasion. The last thing she remembered was him saying "I should have fuckin' killed you the first time". She woke in her bed upstairs. Her hands were tied behind her at the wrists with plastic cable ties. He was slapping her face saying "wakey wakey". Her mouth was gagged. A sock was being held in it with a dressing gown cord. She had wet herself. He removed her underpants. He dried her with a towel and then went downstairs returning with scissors. He used them to cut her dress off her, leaving her naked, gagged and bound. 10He was laughing and threatening her. He removed the gag. She said she was going to be sick. He dragged her still bound to the bathroom where she vomited on the floor. He put her in the shower and washed her. He then took her still bound and wet back to the bed. He continued to threaten her. She eventually stopped struggling. He cut off the cable ties and tied her hands in front of her with the dressing gown cord originally used as a gag. He then rolled her on her side and had penile vaginal intercourse with her, from behind, before withdrawing and ejaculating on her hip. She told the jury she said she lied and told him she enjoyed it. He untied her and left. 11She went outside and vomited. She rang her ex-husband but the offender returned while she was on the phone. He left again. She got a neighbour to take her to Campbelltown Police Station. 12There she was seen to be distressed and bleeding from the nose and eyes. She gave an account of what occurred but was clearly too distressed to make a formal statement. She was taken to Campbelltown Hospital and examined by a specialist, Doctor Belin Balitactac. The doctor gave evidence of the history given to her, which she noted was not given in strict chronological order. The doctor noted bruising to her face, forehead, and particularly around her eyes, which also had petechia burst blood vessels indicative of strangulation. There were ligature marks on her hands and wrists and vaginal redness. 13A police crime scene officer attended and photographed her home that morning. She found a wealth of evidence corroborating AF's account. 14The offender, as is his right, challenged and tested AF's version of events. He had participated in a formal police interview on 19 February 2011, during which he denied choking AF. He did say cable ties were used as an aid to consensual sexual intercourse. He called evidence to support a proposition put to AF (but denied by her) that on prior occasion she had agreed to be choked in order to heighten her sexual arousal during intercourse. The offender did not give evidence. Given her denial there was no evidence this is what occurred that night. The jury, by its verdict, clearly rejected both the defence propositions and the version given in the interview by the offender. They accepted AF. 15Offences pursuant to s 37 Crimes Act carry a maximum penalty of 25 years imprisonment. Aggravated sexual intercourse without consent (s 61J Crimes Act) carries a maximum penalty of 20 years with a standard non-parole period of 10 years. Those maximums and the standard non-parole period provide an indication of how seriously the legislature views offences of this type. 16That standard non-parole period must be taken into account in determining the appropriate sentence. It represents the non-parole period taking into account only the objective factors affecting the relative seriousness of that offence are in the middle of the range of seriousness. A court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in its reasons each factor that it took into account. 17This requirement does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable. There are reasons here for a shorter non-parole period and a significant variation. They relate primarily to the extraordinary subjective matters, now raised and the subsequent requirement that the offender spend a significant part of his sentence in the community where his rehabilitation can be managed. So objectively serious are these offences however, that only lengthy custodial sentences could be imposed: see R v MW [2007] NSWCCA 291 and R v Cutrale [2011] NSWCCA 214. 18The offences were part of a course of conduct during which AF was subject to significant violence and terror and justifiably fought for her life. Each offence requires a degree of separate punishment , but the principle of totality requires a court to fix sentences appropriate to the individual circumstances and overall criminality of what occurred this night. As Justice Beech Jones reiterated in Portolesi v R [2012] NSWCCA 157, at [43] to [46], care must be taken when sentencing for matters for which some or all of the objective circumstances overlap to avoid double punishment: Pearce v The Queen (1998) 194 CLR 610 at [40]. 19Here each offence has features in common with the other. They were however discrete criminal acts, each of which requires independent punishment. There must be however considerable concurrency to reflect: (1)Common features both objective and subjective and relating to the purposes of punishment (2)My assessment of the overall criminality of what occurred and achieving appropriate relativity between the totality of criminality and the totality of the sentences. (3)My recognition that severity of sentence may, because of the compounding effects of a lengthy sentence, increase at greater length than a simple increase in their length; that is the second year in custody is more harsh then the first and so on: see MAK v R [2006] NSWCCA 381, where reference was made to a decision of R v Clinch (1994) 72 A Crim R 301 at [306] - [307], the court in MAK recognised that extremely long sentences can have a crushing effect - increasing their severity and impeding rehabilitation. 20The proper application of these principles must be balanced by my recognition of the fact that public confidence in the justice system requires the court to avoid any suggestion that there is some sort of discount for multiple offending: MAK [2006] at [18], R v Knight (2005) 155 A Crim R 252 at [112].

On bail 21The offender was on bail for serious traffic matters at the time these offences were committed. A breach of the terms of conditional liberty allowed by a court is serious and operates as a matter of aggravation when considering what sentence should be imposed.

Assessment of objective factors 22Each offence was objectively serious. To choke another person risks their death. To choke someone until they loose consciousness, as with the second offence, compounds that risk and must be regarded as a crime of the utmost gravity. 23The sexual assault was demeaning and brutal. To inflict such violence and sexual violence on anyone let alone someone who invites you into their life as a lover is inexcusable. 24I accept AF's evidence that such violent behaviour played no part in her and the offender's sex lives. Earlier consent to the use of cable ties provides no justification for what occurred this night. There were a series of brutal attacks. AF was rendered unconscious and sexually assaulted while tied up. This deprivation of liberty was serious and prolonged. 25Individually and collectively the offences terrorised, overwhelmed and humiliated AF. This, it is clear, was Mr O'Connor's intention. As I noted earlier, considerable physical harm was caused to AF. There is no evidence of ongoing psychological harm but that she might suffer such harm is understandable. The serious consequences of crimes such as those that were committed this night are well known to the court. 26Any sentence must give proper weight to the objective seriousness of what was done. In doing so guidance is given by the maximum penalty and where applicable any standard non-parole period. The offender must be adequately punished for each offence and the totality of his criminality during the incident. 27The purposes of sentencing are ultimately aimed at the protection of the community. A court must ensure adequate punishment. Sentences should, by their severity, seek to deter others and the offender from committing similar offences. They should recognise the harm done to the victim and the community, denounce what was done and make the offender accountable for his actions. Sentences, where possible, should operate to promote the rehabilitation of the offender. 28These objectives are not always reconcilable. Here, as will become clear, there are two highly relevant considerations: The first is the need to recognise the objective seriousness of the crimes committed and their consequences. The second is the impact on the offender of his serious brain injury and its consequences, an injury inflicted while in custody. These considerations are totally incompatible. One is entitled to be determinative. A court is not obliged to average them out: Hopkins v R [2004] NSWCCA 105 at [21] & [22]. 29Here I accept that the victim and her supporters will never forgive and will demand retribution. In Ryan v The Queen (2001) 206 CLR 267, McHugh J identified a significant sentencing principle as retribution, "a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment": at [46]. However, a proper purpose of the criminal law is not to give effect to the irrational prejudices of ill-informed public opinion: R v Windle [2013] NSWCCA 222 at [42]. 30My decision to grant Mr O'Connor bail attracted some negative publicity, including a personal attack on me. Judges learn to put to the side such intemperate remarks and sentence applying principle not emotional responses to criticism or publicity. I accept that to grant the offender bail was extraordinary, but a court must, where possible, do what it can to reduce the harm that flows from the commission of crimes, even if the victim is himself a serious offender. Courts do not make moral judgements comparing one victim of crime to another, unless compelled by legislation to do so: for example s 21A(2)(a) Crimes (Sentencing Procedure) Act 1999; see also R v Previtera (1997) 94 A Crim R 76. 31Here, while in custody, this offender was himself a victim of a very serious crime. His recovery would have been impeded by the lack of appropriate rehabilitation resources in gaol and the simple fact that proportion of his rehabilitation involving relearning and redeveloping socialisation skills, skills could not be learned in a prison environment. The law allows for bail in such circumstances: s 11 Crimes (Sentencing Procedure) Act. In the circumstances, the court was compelled to grant it. The recent reports noted below indicate his recovery has been assisted by the time spent in rehabilitation in the community. 32This in effect cuts both ways for the offender because if he had been sentenced without being given bail I would have had to give greater weight to the damage that was being done to him by keeping him in custody and the restrictions on his capacity for rehabilitation. Because he has demonstrated, to a degree, that he can cope better in gaol less weight has to be given to the impact of custody on him in the future. 33It is worth noting the wise words of the High Court recently set out in Munda v Western Australia [2013] HCA 38 (2 October 2013) at [54], which, although made in a different context, apply here: "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 consequent escalation of violent vendettas between members of the community." 34Each crime, each offender and each sentence is individual, although general principles must be applied soundly and consistently. The factors relevant to fixing the term of the sentence are the same as for the non-parole period but the weight given to each factor may vary: R v MA (2004) 145 A Crim R 434 at [33], R v Simpson [2011] NSWCCA 534 at [64], Bugmy v The Queen (1990) 169 CLR 525. The non-parole period is the minimum time justice requires an offender must spend in custody. 35In MA, the court said the non-parole period must adequately reflect the objective seriousness of the offence and the necessary punitive considerations: at [34]. The comment was made in the context of setting a lower limit to any reduction in sentence to allow opportunities for rehabilitation: at [33]. It has been well recognised that the principles of sentencing do not all point in the one direction: see Veen v The Queen (No2) (1988) 164 CLR 465 and R v Engert (1995) 84 A Crim R 67. In Weininger v The Queen (2003) 212 CLR 629 it was noted that 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." 36A court cannot equate the punishment to be imposed on any offender with the harm suffered by a victim. If victims of crime measured their worth by the units of time spent in custody it would be to demean them. The Courts are not here simply to act as instruments of retributive justice, the Courts must take into account many factors but in doing so, and particularly in a matter such as this, the Court cannot and will not ignore the harm done to a victim.

Subjective Case 37The subjective case for the offender falls into two starkly differentiated parts, marked by the dividing line of the events of 23 May 2012 and their consequences 38The offender, Caleb O'Connor, who also uses the name John Coble, was born on 7 February 1981. He grew up in Macquarie Fields. He was raised by his mother and has had sporadic contact with his father since his parents separated many years ago. 39His schooling was interrupted by periods of juvenile detention. He left in year nine. He did not complete an apprenticeship. He has worked but has spent considerable periods in custody. 40He has three children. A fourth child was stillborn; a tragic event he has still not come to terms with. Initially I was told that he still has contact with his former partner, Nicole. That may still be the situation but I understand from the recent reports that he has not had access to his children in recent times. 41Mr O'Connor first came before the Children's Court in 1995, aged 14. His criminal record from both New South Wales and Victoria sets out a large number of offences, some very serious indeed. It is a long and extensive history covering a wide range of offences and crimes against people and property. It appears that after 1998 there was some gap in his offending, that may be accounted for by the Victorian record, which is now exhibit B. Given the matters on the Form 1 it seems clear that there was a well entrenched pattern of criminal offending from since he was very young. 42He is not to be sentenced because of that criminal record, but here, such is its extent and nature that the record does impact upon the sentence that I must impose. Generally such a record requires greater emphasis be given to retribution, deterrence and community protection: Veen No 2. This background obviously would not merit any leniency nor would it mitigate offences which call for a significant severity.

The events of 23 May 2012 43Mr O'Connor was arrested on 19 February 2011. He has been in custody since that date. He was convicted after trial on 14 May 2012. On 23 May 2012 the offender sustained a serious head injury when assaulted at Parklea Goal. It appears he was hit over the head with a sandwich maker. He spent 17 days in Intensive Care at Westmead Hospital, five weeks at Westmead's Brain Injury Unit and since 20 July 2012 spent considerable time at Long Bay Hospital. He was then discharged from the hospital wing and until December of last year was housed in the Metropolitan Special Program Centre, 'MSPC' Area 10, at Long Bay. There is no evidence other than that brief recapitulation of events to indicate that the crime committed against him involved any form of extra curial punishment: see Silvano v R [2008] NSWCCA 118. 44Before the adjournment on 17 December 2012 I reviewed a number of reports which were exhibited before me: (1)The Report of Justice Health (exhibit A tab 8), Dr Ette, dated 12/10/12, exhibit A tab 8; (2)Report of Statewide Disability Services of Corrective Services, Mr Snoyman, dated19/11/12, exhibit 1. (3)Report of Ms Robilliard, Forensic Psychologist, dated 14/11/12 (exhibit 1) which annexures extracts from Westmead Hospital notes. 45Ms Robilliard and Mr Snoyman also gave evidence. During the course of the adjournment I also reviewed an interim report of Dr Nguyen, Brain Injury Rehabilitation Unit, Liverpool hospital, dated 19/06/13: exhibit 7. 46These reports reveal Mr O'Connor sustained a significant traumatic brain injury, including: (a)Fractured right Parietal Lobe extending to the base of the skull, (b)Right Parietal Extradural Haematoma, (c)Extradural Haematoma in the anterior portion of the Cranial Fossa, and (d)Fracture of the right Zygomatic Arch anteriorly to involve the Pterygoid Plate 47He required a Craniotomy and evacuation of the Extradural Haematoma with the insertion of a Godman's catheter. The catheter remained in him for eight days. He suffered lengthy posttraumatic amnesia which itself indicated extremely severe traumatic brain injury. 48When granted bail on 17/12/12 Mr O'Connor still had: (1)Ataxia - loss of muscle control (2)Mild dysarthria - speech problems (3)On-going memory problems. 49Exhibit 11 indicates that dysarthria is a language problem caused by brain damage. It is characterised by complete or partial loss of language functioning, including the ability to understand, speak, read and write. After some months he became mobile and eventually able to care for himself independently. 50He was, however, prior to being granted bail, worried about other inmates and had spent time on limited association; an understandably normal reaction. With rehabilitation and the passage of time his neurological and functional status improved. His recovery was described, by Dr Gurka, Westmead Brain Injury Unit, on 7/9/12 as "adequate". Other reports note he "appears to be coping and adjusting well". 51I know the Dept of Corrective Services takes seriously its obligation to "maximise the likelihood of people who are incarcerated are housed in a safe and secure environment". Obviously there is, as this case makes plain, only so much they can do. 52This case presented a worrying example of problems that arise when dealing with unbending bureaucracy, which is incapable of sensitivity to the peculiar and particular needs of prisoners. This occurred when this matter came for sentence on 23 November 2012. The warrant was clearly endorsed 'audio/visual link (AVL)' but the offender was brought to Campbelltown, at risk to his physical and mental health. He spent considerable time in a closed van and in the cells below court. These things happen but there is a risk that similar things will happen again. 53Mr O'Connor was classified Special Management Area Protection and it was noted he could be based at the Metropolitan Special Programs Centre at Long Bay. 54Mr Snoyman, a Senior Corrective Services official, in his report from 2012, indicated that Corrective Services, in conjunction with Justice Health, could provide access to Psychologists, and a specialist disability team, which includes Neuro-psychologists. Corrective Services will, I presume, act on their recommendations. Educational, employment and other rehabilitation programmes can, I am told, be made available to the offender. 55Mr Snoyman gave evidence on 23 November 2012. He reiterated that services could, and would, be made available. When sentenced, he said Mr O'Connor would have access on a "needs and priority basis" to a Neuro-psychologist. Given the severity of his injuries he expected he would have priority but he could not guarantee it. 56He said these rehabilitation services would be made available through Justice Health. He spoke of Mr O'Connor being "rehabilitated" on the basis he had been discharged from hospital, but I took this to mean only so far as his physical injuries were concerned. 57In response to the concerns of Dr Gurka and Ms Robilliard, Mr Snoyman said much would depend on what services could be made available to Mr O'Connor in the community. He noted speech therapy and physiotherapy were not generally available in goal except through the hospital but that Mr O'Connor was then housed in the wing adjacent to it. 58My particular concern was that if Mr O'Connor, because of his injury, did not actually seek out such services and appeared otherwise compliant, he would slip through the cracks. Mr Snoyman's evidence did not allay those concerns. 59As to the development of independent community living skills, Mr Snoyman said this was a common problem, as many prisoners come to goal with an Acquired Brain Injury and a comprehensive case management plan would be put in place. Much, he said, would depend on the length of the sentence and its non-parole period and where Mr O'Connor was housed after sentence. 60He stressed that gaols were not rehabilitation centres, but they do have some resources, which could be allocated to Mr O'Connor on, as he said, a "needs" basis. He could not say however whether the risks noted by Mr O'Connor and Dr Gurka could be alleviated. 61Dr Ette, of Justice Health, set out in his report the sort of rehabilitation that could be made available at Long Bay Hospital. In her report, Ms Robilliard provided more personal details confirmatory of conclusions of Dr Ette, which was that it is essential that he needed speech therapy and occupational therapy and things of that nature. 62Dr Ette's position, which he maintains today, is that Justice Health can provide in custody services similar to those available in the wider community and that all the resources of the State Public Health System are available for the use of Justice Health. With great respect, there are, as is evidenced by this case, constraints to the provision of such services which were not alluded to by Dr Ette. 63Ms Robilliard noted after her assessment of the offender that he had no memory of the events for which he is to be sentenced. More recent material indicates that he may have a memory or that there may be some entrenched belief that he did not commit the offences. Regardless, it is clear that he suffered traumatic amnesia. 64She notes he has difficulty concentrating, his attention span was short. His family reported to her a complete change in personality from enthusiastic, bright and energetic to subdued, unassertive and emotionally bland and flat. She reports: "He did not appear to be depressed although he is distressed about being in custody and expressed regret and remorse over the offences that led to his incarceration." The more recent reports do not tend to support that conclusion. 65Of particular importance was the evidence of a marked change in personality and continuing disability. Overall, as is revealed by the recent reports, this means that he is, simply and bluntly, no longer the risk to the community that he was prior to the injury. That does not mean he is completely devoid of risk; far from it. 66Of particular concern to me at the time bail was granted was Ms Robilliard's opinion, expressed at paragraph 30 of her report and endorsed by Dr Gurka, that the offender's recovery would be enhanced by his opportunity to practice living skills in a normal functional context. 67Dr Gurka, in his report, indicated that his potential to make the most of his improvement up until December 2012 would be increased if he had access to regular occupational therapy, speech therapy and physiotherapy within the following 12 months. It is that period, soon after the incident, that the evidence before me indicated was the most vital if the offender was to recover both neurologically and functionally from the consequences of his injury. It was noted that the risk of delaying access to rehabilitation services beyond that 12 month period could mean that the offender would be left with permanent impairment that would limit his ability to live independently in the community. 68I shared those concerns, I still share them. They are supported by the studies cited by Ms Robilliard in her report. Speaking of being in gaol she noted: "While he is living in a regulated, supported, highly structured environment he has very limited opportunity to redevelop skills for independent living and decision making, that is despite all the help he would receive in custody." 69Her opinion was that the longer he spent in gaol, the greater the risk he would develop a dependant attitude. This fear is often held for prisoners, particularly those at risk of institutionalisation: see Jackson v R [2010] NSWCCA 162. 70I now have material before me that gives me some comfort that the decision made to release him to bail was the right one in both Mr O'Connor's and the community interest. I have a report of Dr Ette 30 October 2013; reports of Mr Snoyman 11 October 2013 and 21 November 2013; a report of Dr Nguyen 15 November 2013. I also have the pre-sentence report of Ms Kearney dated 26 November 2013 and a specialist report from Dr Zhu and Ms Sahm of 18 November 2013. 71In Dr Ette's report he noted that psychologists, speech therapists, occupational therapy and rehabilitation were all available through Justice Health but he also noted that this treatment is available via a local hospital. Everything will depend upon where Mr O'Connor is housed and whether there is a local hospital that has those facilities available and whether those facilities can be made available in the gaol. With respect, Dr Ette does not address any of those problems. He reiterated the policy of Justice Health, which I have earlier referred to. 72Mr Snoyman's reports indicate that he is aware of Corrective Services duty to vulnerable prisoners such as the offender. He noted that there would be appropriate screening, classification and case management. That Corrective Services have, and will be, in a position to assist prisoners with acquired brain injuries. He noted that they have staff psychologists and that the Statewide Disability Scheme: "... will prioritise Mr O'Connor for further assessment and make recommendations about specific management strategies." 73He concluded, under the heading "Hardship": "If Mr O'Connor is given a custodial sentence he will face the usual hardships of custody and these may be exacerbated due to his traumatic experience while in custody. However, the experience of CSNSW with people who have impairment (including acquired brain injury) is that inmates generally have the ability to fit into mainstream correctional centres and attend programs, education and work. Correctional officers may or may not be aware of Mr O'Connor's history and injury, irrespective they will ensure a duty of care is provided, as is the case for all inmates." 74I accept that. I can only note that that duty of care was operating as 23 May 2012 when these injuries were inflicted. Mr Snoyman, in his more recent report, noted Dr Nguyen's concerns and confirmed that services were available. I will have more to say about Dr Nguyen's concerns later. 75The pre-sentence report sets out the family background and notes that recently the offender has had no access to his children but he does have strong family support and has been living ,while on bail, with a cousin and her husband. 76It indicated that if he is to engage in sexual offender treatment while in gaol, that a considerable period in custody would be required. It notes that he is still in denial and that he still blames his victim; indicating that he may have some memories of the event or that he has a fixation upon some reconstructed memory. He notes that communication issues are a day to day challenge but that he is otherwise cooperative and open. 77Dr Zhu and Ms Sahm from Forensic Psychology Services of Corrective Services again note that his statements in regard to his victim are at odds with the objective evidence. They note the long history of drug and alcohol abuse and his extensive criminal record. They note his difficulties with forgetfulness, speech abnormality, weakening on the right side of his body, balance problems and that he is more prone to stress and anxiety, suspicious and more withdrawn because of his injury. They note on the static scale that he is a moderate to high risk. 78More importantly in such matters, are areas of concern, often called dynamic risk areas. Their report notes that these have to be addressed while in custody. They include his capacity for relationship stability, his deficits in sexual regulation, his deficits in self regulation, his negative emotional responses and anti-social personality constraints, which still continue despite the injury. Given their long standing nature they will require, in their opinion, intensive treatment, both sex offender treatment and violent offender program treatment. 79Dr Nguyen, in his report of 15 November 2013, notes that the offender has been a client at the Liverpool Brain Injury Rehabilitation Service since December 2012. Physically he notes that he attended their physical program to restore his physical conditioning. He notes, "He demonstrated good response and has maintained his physical activity to improve this further. He recently initiated joining a local gym for fitness maintenance. In the course of the last 11 or 12 months I have noted a significant improvement in the physical appearance of the offender." 80Tendered by the Crown were two recordings, exhibit E. One showed the offender riding a motor cycle, the other showed him walking up the stairs of a railway station texting and carrying a bag. They indicate that he now has significantly improved physical coordination and can engage in normal community life. There is nothing adverse in either of those recordings. They, as I have said, give me comfort that there was a sound basis for allowing him time in the community to secure his recovery. They confirm Dr Nguyen's report. 81There is nothing in exhibit E or any of the reports before me, both from the Crown and from the offender, to indicate that the offender is in anyway malingering or trying to dissemble about the nature or extent of his injuries. As I have said, he is doing his best to get better and that in fact reduces, to a degree, the impact of his illness when it comes to considering matters relating to my sentence. 82Returning to Dr Nguyen's report, it indicates that he has shown a range of cognitive deficiencies, both on formal testing and functional observations. He notes he received functional training and has learned methods to optimise his independence: "With these strategies he's effectively been compensating and has not encountered any significant limitation. By compensating, I mean compensating for his injuries. He may appear to be able to do things normally but he is doing so with an extra effort. He needs to make any extra effort because of his injuries. He has attended pre-vocational workshops, participated well in the projects and enrolled in appropriate courses." 83It notes under the heading "Communication": "He has residual dysphasia that could make complex communication challenging, which is a source of frustration for him at times." He notes he has been receiving language therapy to learn new strategies to rectify the problem. That is common to those suffering brain injuries; they have to teach the brain how to work again. 84It notes as to psychological and behavioural problems, to date he has not exhibited any serious problems, he appears courteous and interacts appropriately with staff. Dr Nguyen concludes: "Over the last 11 months he has shown to be making gains through the therapy provided by the Liverpool Community Rehabilitation Team. Overall he has been largely compliant, no behaviour of concern has been noted. He is expected to continue to improve over the next 12 months and the consistent exposure to ongoing treatment being imperative." 85To reinforce that final recommendation I will have a copy of Dr Nguyen's report annexed to the warrant in this matter. He says that therapy is available to him for a further six months in the community but it is recognised by the offender, as explained by his counsel, that a custodial sentence must be imposed from today. 86In conclusion, there are still some concerns about the offender. It is also clear he does not comprehend or understand the enormity of the crime he committed. 87As I have said, he is not to be punished for exercising his right to go to trial and maintaining his innocence, nevertheless it is a matter that in my opinion requires further work to be done while he is in custody. He would, in my opinion, benefit from a program such as CUBIT, which includes, as I understand, a denier's program. That program, from the information I have received in other cases, has had some degree of success. 88There are however many positive aspects to his progress towards rehabilitation but it is important to note, that positive aspects to his recovery are moving on from a very low base, being coma and near death. He has a serious brain injury and he will be permanently and significantly disabled because of it. He is, because of what happened and its consequences, less likely to re-offend. 89I also note that he has family support. He is now positive and motivated to recover. I note that there are programs which he could access in the community that are perhaps unavailable to him in custody but I hope that, and trust that, Community Service and Justice Health will do what they can and are aware of his needs. 90While in custody he will continue to require intensive physical, practical and psychological rehabilitation. He will also need to attend, with a measure of understanding, sex offender and violent offender programs. While he is in custody he will always be justifiably wary of other prisoners. He will suffer significant hardships not suffered by other prisoners. 91When an offender suffers a significant disability the court must take into account: (a)Their need for medical and psychological treatment (b)The likelihood of their reasonable needs being met in prison, and (c)The overall hardship they will face while imprisoned. 92The courts recognise such factors must operate to mitigate punishment and the more serious or burdensome they are, the more mitigation of penalty is required. 93Where imprisonment poses a risk such conditions will worsen or lead to irreparable harm the more these principles operate. But these factors can only go so far, for the risk of disability must be assessed in the light of all the circumstances of the case: see R v L; R v BJW (2000) 112 A Crim R 1 at [31]. In Higgins v R [2002] NSWCCA 407, where the offender was dying of HIV/AIDS, it was held the court could not give priority to the offender's health. 94A court can however take into account predictable risks, and that includes future repetition of the events of 23 May. As McHugh J said in York v The Queen (2005) 79 ALJR 1919: "The common law's equal concern for the physical safety of each citizen makes it appropriate for a sentencing judge to take into account the grave risk that a convicted criminal could be killed while in goal. What weight should be given to the risk of a prisoner being killed or injured will depend on all the circumstances of the case including the likelihood of its occurrence." 95The reality of prison life should not be overlooked: R v Burrell (2006) 114 A Crim R 202 at [77]. Serious health concerns are also relevant as a special circumstance: Setten v R (1991) 51 A Crim R 313. 96Returning briefly to the purposes of sentencing and examining them in the light of what occurred. I start by noting that nothing that occurred on or after 23 May 2012 should impact on my assessment of the objective circumstances or seriousness of the offences. Similarly nothing since diminishes the need to determine what occurred, nor does it diminish the need to recognise the harm done to Ms AF and the community. Common humanity however recognises that the offender is no longer as suitable or as appropriate a vehicle for general deterrence as he was when first convicted: see Austin J in Engert (1995). 97This does not mean that general deterrence does not have some role to play here, but it has a lesser role than it would have been the case had it not been for the injury and its sequelae. 98Given his amnesia and subsequent changes of personality and the severity of his injuries, personal deterrence is also no longer as significant, nor is there the need to protect the community from the offender, which there would have been, given the antecedents and pattern of behaviour demonstrated by his prior criminal record. 99The evidence about his time on bail indicates that he can now lead a law abiding life in the community and he can use his time well. That provides a great distinction from his behaviour prior to and including the commission of this offence and his incarceration. 100The sentence must do what it can to promote his rehabilitation. It must be recognised that the longer he spends in custody the greater is the risk to that rehabilitation. It cannot be ignored that these injuries occurred in goal. To return to what Justice McHugh said in York: "The law must seek to ensure that each and every citizen, including a convicted criminal, "is properly safeguarded by the law against the predations of others." [16] That means that a sentencing judge must endeavour not only to protect society from the risk of a convicted criminal re-offending but also to protect the convicted criminal from the risk of other prisoners re-offending while in jail. " 101I do find there is a significant risk that the goal environment itself (putting aside the risk of harm from others) will impede, and could, as Ms Robilliard notes, alter negatively, the offender's rehabilitation prospects, making it more difficult for him to relearn and retain the skills necessary for life outside of goal. That said, so objectively serious were his crimes that he must be returned to gaol for a significant period.

What is to be done? 102In all the circumstances only a significant custodial sentence could do justice to the seriousness of each crime committed. He must still be held accountable for his crimes. Given the matters are all related and form part of a course of conduct an aggregate sentence should be imposed. I will take into account the matters on the Form 1 on Count 3. 103I confirm the convictions. I note I have found special circumstances and I note, for the reasons set out in my judgment that I have determined that the Standard Non Parole Period for Count 3 should not apply. I think the reasons are obvious, they also include matters relating to concurrence and aggregation 104The offender was arrested on 19 February 2011 and refused bail, until I allowed s 11 Crimes (Sentencing Procedure) Act bail on 17 December 2012. That is, he has spent 668 days in custody. He has spent nearly 11 months prior to today in the community undergoing rehabilitation, he must return to goal today to serve his sentence. To allow for the 668 days custody his sentence will be backdated to commence on 31 January 2012. 105Sentencing is not, and should never become, an exercise in simple mathematics. When I did the calculations in this matter and formulated the sentence I believed 2 years more in custody before parole was possible was required. I have also allowed the offender to be released prior to Christmas . It has been my experience that the additional pressure of being in custody for a very short period during January creates problems both for prisoners and Corrective Services. 106One reason for a judge having to give such lengthy and comprehensive reasons is so that "the community, the victim of the offence and if required, appellate courts can know how each sentence and aggregate sentence was arrived at": see R v Nykolyn [2012] NSWCCA 219 107Often sentences can be used as an indicator of the seriousness with which the court views the crime committed. Sometimes as here, particular and extraordinary considerations mean such a direct correlation is impossible. The victim should, as I said, never equate her injury with the punishment actually inflicted. For these reasons I feel it is appropriate to note that the sentence that I would have imposed had the events of 23 May 2012 not occurred would have been significantly more severe. The sentence I intend to impose is much shorter and the non-parole period considerably shorter.

Sentence 108Could you please stand Mr O'Connor? In relation to the matter which was before the Local Court, that is number one, is marked withdrawn and dismissed, the other matters have been taken into account on the Form 1. In relation to each matter you are convicted. In relation to count 1, the s 37 matter, I indicate a sentence of four years imprisonment. In relation to count 2, the s 37 matter, I indicate a sentence of four years imprisonment. In relation to count 3, the s 61J matter, taking into account the matters on the Form 1 I indicate a sentence of seven years imprisonment with a non-parole period of three years. 109There will be an aggregate sentence of nine years imprisonment consisting of an aggregate non-parole period of three years and ten months to commence on 31 January 2012 and expire on 30 November 2015. You will be eligible for consideration for release to parole on 30 November 2015. The aggregate sentence parole period will commence on 1 December 2015 and your total sentence will expire on 30 January 2021. That is effectively a sentence of four years minimum with a nine year maximum with minor adjustments. You have two years left to serve.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2014

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