R v Coats

Factual narrative

1. On 24 June 2020 I found Mr Parkinson not guilty of murder on the ground of self-defence and Mr Coats not guilty of attempted murder. His plea of guilty to the alternative count on the indictment remained. This judgment assumes familiarity with my reasons given on 24 June 2020: [2020] NSWSC 794.
2. Mr Coats's offending arose in the immediate aftermath of a bloody struggle between Mr Quirk and Mr Parkinson at about midday on 10 March 2018 in Vera Street, Corowa. On my findings Mr Quirk and Mr Parkinson had been involved in an acrimonious dispute. Mr Parkinson issued what was effectively an ultimatum to Mr Quirk to resolve the dispute by fist-fight. Mr Quirk approached Vera St armed with both a knife and a mattock handle. He was supported by others who kept lookout as it was known that the police were looking for Mr Quirk over another matter. When he saw Mr Parkinson he went straight for him stabbing him with the knife, inflicting a number of near fatal wounds. Notwithstanding the wounds Mr Parkinson had received, the two men continued to struggle over possession of the knife. At some stage Mr Quirk discarded the mattock handle. Around then Mr Parkinson gained possession of the knife and inflicted a single stab wound to Mr Quirk's left thigh just above the knee which severed his femoral artery. Apparently exhausted by their exertions and by blood loss from their wounds both men collapsed in the front yard of Mr Coats's place.
3. Before the start of the fight between the other two men Mr Coats had been working in his backyard sorting out tools. From there he saw Mr Quirk approach and noticed he was armed with the knife and the mattock handle and decided to intervene. His then partner attempted to stop him from joining the fight delaying him somewhat so that by the time he emerged to his front yard the other men were already in their state of collapse.
4. When Mr Coats entered his front yard Mr Quirk was already down and in a bad way. There is, of course, no question that at the time of Mr Coats coming to the aid of his friend, Mr Parkinson the fight was over. Whether his actions were motivated by the attack on Mr Parkinson is relevant to but not determinative of the question of his state of mind at the time. For what it is worth I am of the view that what happened next was in response to what he saw of Mr Parkinson's injuries. At that time all the witnesses were more concerned about Mr Parkinson than Mr Quirk as Mr Parkinson had the more obvious serious injuries. And Mr Coats was friends with both of them.
5. Seeing the injuries to Mr Parkinson Mr Coats picked up the discarded mattock handle and struck Mr Quirk with it. There was a dispute about how many blows were struck. Before dealing with that matter, I should say I had the benefit of the expert testimony of a forensic pathologist Dr Elstub. I accepted her evidence that Mr Quirk received a number of serious but non-fatal injuries as a result of blunt force trauma consistent with the use of the mattock handle. The injuries are fractures to the left eye socket, the left nasal bone and the left cheek bone. She also gave evidence that Professor Buckland a forensic neuropathologist had concluded that Mr Quirk suffered a mild traumatic axonal injury to the brain (240.4T). None of these injuries were the cause of Mr Quirk's death and each of them can be attributed to blunt force trauma of the type that might be inflicted through contact of Mr Quirk's head with a swinging mattock handle. Dr Elstub described the brain injury as of the type one might suffer through concussion. And although she could not say with certainty her evidence led me to conclude that the whole complex of facial fractures and brain injury was consistent with a single blow from the mattock handle given its dimensions.
6. From the accounts of independent witnesses and the evidence of Dr Elstub, I found at the trial that Mr Coats struck one blow, "just one", to Mr Quirk's head with the mattock handle. I accepted that it involved a lusty, full blooded swing from above Mr Coats's shoulders. One witness described it as a "very vicious blow" and I accepted that was an apt description. I rejected the suggestion that he struck Mr Quirk otherwise about the body. The fractures to his ribs diagnosed by Dr Elstub have not been proved to be other than due to subsequent efforts at his resuscitation when various attempts were being made to sustain his life at Corowa Hospital. This was Dr Elstub's preferred explanation. I was satisfied on the basis of Dr Elstub's evidence, which I have summarised, that one full blooded lusty vicious blow was sufficient to inflict the grievous bodily harm represented by Mr Quirk's non-fatal injuries. I also accepted evidence that when and after the blow was struck Mr Coats uttered hateful words indicating he hoped for the worst for Mr Quirk.
7. I turn then to the question of intoxication and its effect on Mr Coats's state of mind at the relevant time. I am satisfied that Mr Coats was intoxicated. Although he claimed only to have imbibed and inhaled one alcoholic rum drink and two bongs of cannabis without further enhancement when interviewed by investigating police, it has to be recognised, that it is the experience of the courts, that citizens tend to understate, if not lie about, how much they've had to drink or what drugs they may have taken when questioned by police. Moreover, I was impressed by the evidence of a lay witness, a Ms Johnson, who formed the opinion that Mr Coats was "off his face". The meaning of this expression is clear, even if it is difficult to break it down into its constituent parts. Although she is a young woman, I accept her evidence that she has had the misfortune to have had casual experience with drug users when they are intoxicated. Her evidence is entitled to weight.
8. I formed the opinion that the thought patterns expressed in Mr Coats's speech during his ERISP, four hours after the event, seemed rambling and incoherent. There may be many explanations for this, but one of them, which is surely available is that he was still affected by illicit drugs at that time. Ms Johnson said his pupils were dilated and certainly his appearance on the audio visual recording was consistent with a lingering degree of intoxication. The question has now been put beyond doubt. For the purpose of these proceedings on sentence Mr Wilson SC, who appeared for Mr Coats, has tendered the report of Dr Marcelo Rodriguez, a forensic and neuro-psychologist dated 3 August 2020 which records a history given by Mr Coats of long-term illicit drug use including since about 2013 daily consumption of methamphetamine or "ice". Mr Coats said he was heavily affected at the time and had not slept for some days due to his intoxication.
9. Taking all these matters together, the single albeit very vicious blow, the expressions of ill will to Mr Quirk, not really amounting to statements of specific intent, and his level of intoxication at the time, I was not satisfied that the Crown had proved beyond reasonable doubt that when he struck the blow Mr Coats had the actual specific intent of killing Mr Quirk as opposed to inflicting grievous bodily harm upon him. I thought it highly possible that his case fell into that category of an intoxicated person who acted without turning his mind to the achievement of any specific purpose. Although given his plea of guilty I accept that he acted with the specific intent of inflicting really serious injury on Mr Quirk, which intent was formed spontaneously as he picked up the mattock handle to strike Mr Quirk.

Objective seriousness of the offending

1. It is an essential task of the sentencing court, especially for standard non-parole period offences, to assess the objective seriousness of the offending: s 54A Crimes (Sentencing Procedures) Act 1999 (NSW); Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. Meaningful content cannot be given to the concept of objective seriousness by taking into account characteristics of the offender. The High Court of Australia has said, "the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending". In my judgment, questions of moral culpability are separate from and different to questions of objective seriousness. Likewise, specific matters that may be taken to aggravate or mitigate, as the case may be, the sentence are not taken into account for this purpose.
2. The starting point for assessing objective seriousness for this offence is the degree of grievous bodily harm inflicted. It must be borne in mind that the infliction of grievous bodily harm is an element of the offence and care must be taken to avoid double counting. That element of the offending covers a wide spectrum of injury from the legal threshold of really serious bodily injury to catastrophic injury. In the present case there is no doubt that the facial fractures and the axonal brain injury together constitute grievous bodily harm, readily crossing the threshold. However, had his death from blood loss due to his severed femoral artery not intervened, it is likely that Mr Quirk would have, at least in the medium term, fully recovered.
3. There was no planning involved in the offending, the formation of the necessary intent was spontaneous, as I have found, and no particular purpose of inflicting a specific degree of injury was adverted to by Mr Coats. Despite the careful argument of Mr Wilson to the contrary, grievous bodily harm can be inflicted without the use of a weapon for example by a forceful punch, whether or not the victim is knocked down. The improvisation of Mr Quirk's discarded mattock handle as a weapon is a factor of relevance.
4. I bear in mind that a single blow was struck and that Mr Coats was dissuaded from going on with an even more vicious attack.
5. To strike a man when he is supine and therefore vulnerable and incapable of defending himself is dastardly. To strike him that way with an improvised club like the mattock handle in those circumstances is despicable. However, I bear in mind that the assault was predicated in response to the apparently serious injuries which Mr Coats knew had been inflicted upon Mr Parkinson by Mr Quirk. This factor and the consideration, I have already referred to, that Mr Coats desisted from, rather than going on with, the attack serves to reduce the seriousness of the offence somewhat.
6. For these reasons, in my judgment, the relative seriousness of Mr Coats's offending is below the middle of the range of seriousness for offending in contravention of s 33(1)(b) Crimes Act.

The relatives of Mr Quirk

1. I am conscious that close relatives of Mr Quirk, including his mother, were present in court at the trial in Albury and have been present during the proceedings on sentence of Mr Coats by audio visual link. As I have tried to make clear, while Mr Coats's offending is doubtlessly and understandably very hurtful to Mr Quirk's family, it did not cause or even contribute to his death and for this reason I am not authorised by law to receive family victim impact statements from them. Moreover, it would be contrary to principle for me to take into account their grief and sense of loss over Mr Quirk's death as an aspect of the harm done by Mr Coats's offending for sentencing purposes. However, none of this prevents me from expressing my sincere sympathy to them for their loss.

Mr Coats's subjective circumstances

1. Mr Coats was born in 1975. He was aged 42 in March 2018 and is now 44. In many ways he suffered a disadvantageous upbringing. He was born when his mother was serving a term of imprisonment. She cared for him in custody for the first six months of his life until he was adopted by his mother's adoptive sister. The source of this information about his family background is the report of Dr Rodriguez. Doing the best I can to draw inferences from his commendably succinct recounting of the history, I formed the impression that Mr Coats was mainly raised by his adoptive grandparents. It is a little unclear, but it seems he may have developed some behavioural problems by about the age of 12 and his adoptive grandfather thought it would be appropriate to reveal the offender's adoptive status to him and take him to visit his biological mother who was still in prison in Melbourne. This did not have, what I assume to be, the desired effect. It seems to have made his behaviour worse because he developed the conviction that his mother had abandoned him. He developed a very negative view of his mother, which according to Dr Rodriguez was "unrelenting".
2. His worsened behaviour from this age included truancy, drinking alcohol, swearing and generally being rebellious against authority.
3. He had difficulty at school and became very unruly. He began using cannabis at the age of 13 which had become heavy by 15. He commenced using amphetamines at 17. He began his use of what he described to Dr Rodriguez as the "devils drug … ice" in his mid-thirties, which, as I have said, developed into a daily habit. He also used other drugs from time to time including the abuse of prescription medication.
4. He left school in year 9, having had a disrupted secondary education. At one stage he ran away from home, colourfully to join a circus. He was involved in a number of serious accidents including a single vehicle collision with a tree in which one of the other passengers was killed. Dr Rodriguez suspected a head injury as a result of that accident and a number of other incidents including a fractured skull suffered at the age of 21 while in prison. Dr Rodriguez was unable to arrive at a firm diagnosis in this regard. He was not briefed to carry out neuropsychological testing, which may have been difficult anyway given that Mr Coats is in custody and Dr Rodriguez's examination was conducted by AVL.
5. Mr Coats did not stick at an apprenticeship as a welder, but along the way has acquired skills as a concreter, which work he apparently enjoys, although he has had frequent periods of protracted unemployment and incarceration.

Criminal record

1. Mr Coats has a criminal record in New South Wales, Victoria, South Australia and Queensland for a variety of offending. His record as a whole is such as to disentitle him to the leniency a person with a prior good record would receive. Most relevantly, as an adult he has a number of crimes of violence on his record for which he has received custodial sentences. The first such offence as an adult was one of assault occasioning actual bodily harm for which he was sentenced to 300 hours community service with a $1,000 fine at the Corowa Local Court in 1994. He was apparently called up on that in 1995 and sentenced to a fixed term of imprisonment of 3 months. In 1996 he was sentenced to a fixed term of 4 months for two counts of common assault. In 1997 he received concurrent terms of 2 months for assault occasioning actual bodily harm and common assault. In 2007 a s 12 suspended sentence was imposed for the offence of assault occasioning actual bodily harm. In 2008 there was an offence of contravening an apprehended violence order.
2. I should observe that following his arrest on 10 March 2018, when he was remanded in custody bail refused he was sentenced to a fixed term of 9 months commencing on 10 March 2018 and concluding on 9 December 2018 for a prior offence of break, enter and steal, committed in May 2017. At the time of his arrest he was on bail for this offence. He also received concurrent sentences of one month's imprisonment for each of dishonestly obtaining a financial advantage by deception and cultivating a prohibited plant. The quantity of the plant was less than the indicatable quantity. On 15 June 2020 he was sentenced to a period of imprisonment of 8 months having a non-parole period of 4 months commencing on 16 March 2020 and expiring on 15 July 2020 for an offence of common assault which occurred while in custody. A number of fellow inmates seemed to have been involved in this incident and were also sentenced.
3. So far as his interstate record is concerned, there are three offences of violence in Victoria including an offence of intentionally causing serious injury. So far as I can tell, none of those offences resulted in his incarceration. His Queensland and South Australian records are short, involving no crimes of violence and no incarceration.

Plea of guilty

1. I have already mentioned that Mr Coats pleaded guilty at the first available opportunity and I accept that this entitles him to a discount on the sentence which would be otherwise passed of 25 percent under the law as it stood before the commencement of Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW). These proceedings were commenced when Mr Coats was brought before the Local Court on or about 11 March 2018.

Mental health issues

1. I did not understand Dr Rodriguez to proffer any diagnosis of a recognised psychiatric illness currently other than for a substance use disorder relating to Mr Coats's previous use of methamphetamines and other illicit drugs, from which he appears to have abstained while in custody. However, I note that there is one breach of prison discipline on 13 January 2020 for failing or refusing to provide a drug sample. Dr Rodriguez regarded the disorder to be "in the severe range" and considered it had some relationship to the current offending. Given his history of behavioural problems in his youth, Dr Rodriguez is of the opinion that Mr Coats would have met the criteria for Conduct Disorder and Attention Deficit Hyperactive Disorder then. He suspects an acquired brain injury, but there is a paucity of objective evidence to support the diagnosis. Mr Coats also suffers from reactive depression and anxiety while in custody for which he has been prescribed anti-depressant medication, which seems to have helped ameliorate his symptoms. I will take into account these difficulties in gaol including his relatively long period on remand as aspects of mitigation.

Aggravating features

1. The main aggravating feature is the commission of the offence while at conditional liberty on bail. This is always regarded as a matter of some significance. I would not regard the use of the mattock handle as a weapon in this case as a separate aggravating feature given I have taken it into account in my assessment of the objective seriousness of the offending.

Mitigating factors

1. I have found that at the time of the offending, Mr Coats was intoxicated by a number of substances, in particular, methamphetamine. I bear in mind s 21A (5AA) Sentencing Procedure Act which provides that self-induced intoxication of an offender is not to be taken into account as a mitigating factor. Mr Wilson submitted that an interpretation that the subsection abolishes the common law approach to intoxication should not be "accepted uncritically". He submits that the exception recognised in R v Henry (1999) 46 NSWLR 346, that where an addiction was acquired as a juvenile when the person was unable to exercise judgment due to his or her youth ought to be still regarded as good law. Alternatively he submits that even if not a mitigating factor, this circumstance remains a factor relevant to the assessment of moral culpability in the sense discussed by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [40] - [44] as an aspect of "profound childhood deprivation".
2. I am of the view that s 21A(5AA) must be taken to apply for all purposes so that the exception to the common law rule that intoxication was not a mitigating circumstances in respect of persons who acquired their addiction in their youth has been abrogated. At the same time, I am of the view that Mr Wilson's alternative argument ought to be accepted and to the extent to which Bugmy considerations ameliorate and reduce what might otherwise be the moral culpability associated with this offending, it is relevant to bear in mind that Mr Coats's substance abuse disorder commenced between the ages of 13 and 15. However, accepting that by his mid-thirties he was no doubt in the grip of it, it was not until then that he started using ice.
3. None of this means that intoxication is a justification for Mr Coats's offending. But the matters I have referred to in relation to his upbringing, his disadvantage and the dysfunctionality of his youth do reduce to some extent his moral culpability for this offending including the consideration that it was committed while he was under the effect of intoxicating illicit drugs which addiction he acquired as an aspect of his childhood deprivation.

Remorse, re-offending and prospects of rehabilitation

1. In addressing questions of remorse, rehabilitation and the prospect of re-offending it is important to bear in mind that Mr Coats has three children from a long term previous relationship, which included a marriage of four years duration. The marriage seems to have broken down because of the escalation of Mr Coats's substance abuse to methamphetamine addiction. He is now estranged from his wife, who he blames for estranging his three teenage children from him. He remains hopeful that he can re-establish his relationship with his children. He understands that his former wife has established a new relationship with a new partner.
2. At the time of the offending he was in a four year relationship with another woman. His incarceration has caused that relationship to fail and they are "just friends now". When he is released from custody he will then be a person in a position of significant social isolation. He is not keen to return to Corowa and this is understandable.
3. As I have pointed out he has from an early time been prepared to accept legal responsibility for his offending by offering to plead guilty to the lesser offence with which he was charged and he has now been acquitted of the more serious offence. However, so far as I can see there is no clear unequivocal expression of remorse recorded in the report of Dr Rodriguez. He regards Mr Coats's prognosis as guarded. I accept that Mr Coats's prospects of rehabilitation will depend upon him demonstrating that he has overcome his extensive history of substance abuse when he returns to the open community. Moreover, Dr Rodriguez is of the view that unless he can re-establish a relationship with his children he will have emotional difficulties and limited community supports. He does have employment skills as a concreter and in the past he has worked productively for a number of years in this trade.
4. Mr Coats's criminal history is a poor prognostic factor, but again, much will depend upon what support of a formal and informal type he receives when released. It does seem to me that he will, notwithstanding his maturity of years, need an extended period of supervision in the community to overcome his substance abuse issues, regain employment and obtain stable housing. If these things can be achieved, it seems unlikely that he will re-offend in this serious way again. Dr Rodriguez is of the view that he is at a high risk of relapsing into substance abuse "without considerable clinical support".

Sentencing consideration

1. I think it goes without saying that the various and disparate purposes of sentencing can only be satisfied and accommodated in this case by the imposition of a sentence of full time imprisonment. The need for punishment to give effect to the requirements of retribution and denunciation and to hold Mr Coats accountable for his actions all dictate that no other sentence than full time imprisonment is appropriate.
2. Viewing this offending as an incident of public violence in broad daylight, and his past record, brings into play considerations of both general and specific deterrence. However, these are somewhat attenuated by what I have referred to as the Bugmy factors. Mr Coats's record suggests that there is also a need to bear in mind the purpose of community protection. On the other hand, it also bespeaks the desirability of the promotion of Mr Coats's rehabilitation as the best form of community protection.
3. One, of course, has to recognise the harm done to Mr Quirk and to the community generally by this offending. Although Mr Coats's conduct did not cause or contribute to Mr Quirk's death, the violent infliction of injuries upon him must be recognised in the sentence passed.
4. As Mr Wilson has argued, principles of totality come into play because since his arrest on 10 March 2018, Mr Coats has served sentences for other unrelated offending. This separate criminality involved in those offences must be recognised and should not be subsumed in the sentence I must impose by allowing complete concurrency. At the same time, Mr Coats is entitled to credit for the time served solely in respect of this offending. He has been in custody for 2 years and 6 months. Of that time he has served relevantly a fixed term of 9 months commencing on 10 March 2018 and a non-parole period of 4 months for the gaol assault. This, of course, is a period of 13 months imprisonment imposed as the minimum sentence justice required in respect of other offending. To take account of this and to bring to bear the principle of totality, I think it appropriate to commence the sentence I will impose on 10 March 2019. I regard this degree of accumulation as fitting the requirements of justice for the whole of Mr Coats's relevant offending.
5. I will also make a finding of special circumstances altering the statutory ratio between the non-parole period and the additional term which I must impose. First to have regard to the degree of accumulation I have referred to and secondly, to give some weight to Mr Coats's likely need for extended supervision when released to his parole in due course for the reasons I have already addressed.
6. Mr Wilson has provided me with detailed information about the Judicial Commission sentencing statistics, a schedule of comparable sentences and copies of a number of decisions which he submits are particularly apposite to provide guidance in sentencing Mr Coats. I have had close regard to that material. I do not propose to analyse it in detail. I appreciate that the provision of the material is to assist me to impose a sentence which is consistent with both the general pattern of sentencing for like offending, so far as one exists and the principles that have been brought to bear, especially by the Court of Criminal Appeal, in dealing with like offending. I have utilised the information, principally, as a yardstick.
7. Although consistency is an important purpose of sentencing, as I have already stated offending of this type covers a wide range of criminal conduct. That being so, no two cases are ever truly the same and there is little point in analysing broadly similar cases in detail only to put them aside. As I have said I have carefully considered the information Mr Wilson has provided.
8. Given all of the facts, matters and circumstances I have referred to as relevant to sentencing this offender for this offence, I am of the view that the appropriate starting point for a term of imprisonment, bearing in mind the maximum penalty and the standard non-parole period prescribed by Parliament, and my assessment of the objective seriousness of Mr Coats's offending, is a sentence of 8 years imprisonment. Allowing 25 percent for the early plea of guilty, I will impose a sentence of full time imprisonment of 6 years to commence on 10 March 2019. Mr Coats's total effective sentence from 10 March 2018 for various offending is therefore one of seven years. To allow for the degree of accumulation I have adopted and to provide for an adequate period of supervision in the community when Mr Coats is released, for this offending I propose to impose a non-parole period of 4 years. This will in substance preserve the statutory ratio given the accumulation and will allow Mr Coats two full years of supervision in the community, if he is released to parole when first eligible.
9. Release to parole depends upon the decision of the State Parole Authority and in large measure that will depend upon Mr Coats's conduct in custody and in particular availing himself of such programs of rehabilitation as are made available to him during his sentence.
10. Mr Coats, upon your conviction for intentionally inflicting grievous bodily harm upon Christopher Quirk, I sentence you to a term of full time imprisonment consisting of a non-parole period of 4 years commencing on 10 March 2019 and expiring on 9 March 2023 with an additional term of 2 years commencing on 10 March 2023 and expiring on 9 March 2025. You will be first eligible for parole after the expiration of the non-parole period on 9 March 2023.

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