R v Conway

Agreed facts

1. The offender and April Huisman had been in a relationship. They share a son born during the relationship. The relationship ended in about September 2018.
2. Since the breakup April Huisman had begun spending time with Jamie Bridge. They were friends. In early December 2018 they had been spending time at the car park at Toowoon Bay beach. Usually Jamie would drive April and himself to that location where they would listen to music and chat.
3. On 17 December 2018 at about 10.30pm April Huisman picked up Jamie Bridge from his home. She was driving her vehicle which she had purchased whilst she was in a relationship with the offender as Mr Bridge's car was out of petrol. Ms Huisman drove with Mr Bridge in the front passenger seat to the Toowoon Bay beach car park. They arrived at about 10.45pm. They parked in the car park. They were seated in the car listening to the radio and smoking cigarettes. They had their windows down because they were smoking.
4. At about 11.45pm Ms Huisman heard a car speed down into the car park. She saw that it was James Conway's car (who is the offender's brother and co-offender). The car parked directly behind Ms Huisman's car blocking her car in so she could not drive away. This offender and his brother James got out of the car quickly and approached the front passenger door. This offender went to the front passenger door whilst the co-offender, his brother James, stood nearby at the rear passenger door. This offender put a Taser (or a stun gun type device) through the front passenger side window. He stunned Mr Bridge on the neck. This offender then opened the car door and threw his arm inside. This offender stabbed Mr Bridge to the chest using a 25 centimetre knife with an orange handle. This caused a wound that began to bleed.
5. Mr Bridge saw the orange handle as the offender pulled his hand away. Mr Bridge described the knife as "a brand new knife, a hunting knife, 25 centimetres long". The two men began to wrestle. Mr Bridge noticed some blood on his shirt. He grabbed hold of the offender's hand to prevent being stabbed again. This offender's brother handed this offender the Taser stun gun and this offender used it to shock Mr Bridge again to get him to release his grip. Mr Bridge then let go of this offender's arm and this offender stabbed him to the upper right arm causing another wound. From that point things became a bit of a blur for Mr Bridge. He suffered five small cuts to his hands and fingers from when he was trying to defend himself from being stabbed.
6. Ms Huisman got out of the driver's seat and came around to intervene. She punched this offender to the back of his head. She screamed "Please stop". She tried pulling this offender out of the car, but couldn't move him. Whilst this was happening the co-offender, James, said, "Have you been with him?" And, "What are you doing, you fucking slut, you have been with him?"
7. Ms Huisman told the co-offender James that she had not and he made her swear it and shake his hand. The co-offender James then said to Mr Bridge, "Have you got kids, have you got kids?" Ms Huisman said that Mr Bridge had two daughters. This offender then stopped assaulting Mr Bridge and got out of Ms Huisman's car.
8. This offender and Ms Huisman then walked around to the back of her car, she asked, "What has just happened?" Suddenly this offender head butted her causing his forehead to contact with her nose. Her nose started to bleed. She suffered some bruising around her eyes. The co-offender James and this offender then walked off back towards the co-offender's car. Ms Huisman got into the driver's seat of her car with Mr Bridge in the front passenger seat. She managed to reverse her car and swing it to get out of the car park. She drove quickly from the car park. She noticed blood all over Mr Bridge's stomach and running from his nose. He said, "He stabbed me, he stabbed me." Ms Huisman drove to The Entrance Police Station.
9. The co-offender James and this offender followed behind Ms Huisman's car until they reached Toowoon Bay Road where they turned right and Ms Huisman continued on to The Entrance. At The Entrance Police Station police administered first aid to Mr Bridge. An ambulance arrived soon after and he was flown by helicopter to Liverpool for treatment.
10. Several eye witnesses witnessed the assaults on Mr Bridge and Ms Huisman. They provided statements to police consistent with the versions provided by each victim.
11. On 18 December 2018 police executed a search warrant at a unit in Long Jetty which was the home of this offender and his brother James. No one was home.
12. Later on 18 December 2018 Lesley Corrigan (mother of each of James and Sam Conway) spoke to police at Wyong Police Station. She had received a text message at 2.27am on 18 December from this offender's mobile phone which read:
13. "You can believe, imagine what you want I will need to talk to you face to face, I have done wrong, just not as wrong as you will get told. I live a quiet life and she has done something to put me away. For the first time ever I need you, my mum more than ever, just for advice. Mum I need you though it has to be anonymous and no one can know where when or that we have been in contact after our conversation, your advice, maybe a hug, I will go, leave separate way this girl has ruined me".
14. Police made several attempts to arrest this offender and his brother James. They attended their house a number of times but no one was present. The knife and Taser used during the offence have not been recovered by police.
15. Mr Bridge was discharged from Liverpool Hospital on 20 December 2018. The discharge referral notes confirm that he had a penetrating stab injury to his front chest area, 16 millimetres left of the midline just above the level of the sternum.
16. The stab injury penetrated four centimetres towards the diaphragm. The chest wound was sutured with six sutures. He had a one centimetre stab wound to his arm above his right elbow which required two sutures.
17. On 25 December 2018 the co-offender James Conway was arrested at his home. This offender was arrested on 20 January 2019. Both participated in recorded interviews.
18. In summary the co-offender James Conway said in his interview that the offender and he are estranged brothers, that this offender had been smoking ice for some weeks prior to 18 December and had become increasingly paranoid that Ms Huisman had been sleeping with other men, that this offender drove his vehicle, he said he stayed in the passenger seat for most of the time until Ms Huisman got out of the car. He said he was trying to diffuse the situation. He saw this offender head butting Mr Bridge. He had also seen this offender with a "cheap plastic looking Taser thing" in the car prior to the incident in the car park. After the incident they went "cat and mouse" for a few weeks. He told police that it was "never, never planned, nothing was planned, it just all erupted".
19. He said to Ms Huisman, "What are you doing, swear on your kids' life you haven't cheated". He also said to Mr Bridge and Ms Huisman, "What have you guys been doing, just swear on your kids". He described that this offender tasered Mr Bridge "a few times not just one little taser in one spot". He told police that he did not touch Mr Bridge or Ms Huisman at any stage. He said he went along with this offender in the car because he had nowhere else to go, he had no phone and no home, as this offender was providing a roof over his head.
20. In summary this offender told police in his record of interview that he had just recovered from a "bender" and that he was smoking ice three or four times a week. He told police that on 17 December he went to his "local" and smoked some ice. He ended up down at the location of the offending with his brother, in his brother's car. He said he had a taser on him. He had been getting paranoid so he got a knife from someone and stored it in the back or passenger seat of Ms Huisman's car. He thought he was seeing people and that is why he had the knife. He noticed the red car and that it was Ms Huisman's car. He saw another head sitting in the car and realised it was a "dude" in there. He described that "it was a crime of passion in a way, "I just lost it". "I just wanted to scare him with my taser". He told police that he drove up and parked behind Ms Huisman and said, "I went round and I went to taser him". "At first I wanted to just hold it at him, scare him and get him out of the car". He described that he opened Mr Bridge's door and put the taser near him. He admitted that he touched Mr Bridge twice with the taser. He said that Mr Bridge produced the knife from within Ms Huisman's car and stabbed him to the hand, he said that he knew that Mr Bridge wanted to take Ms Huisman away from him. He said there was a struggle and he grabbed the knife, he admitted that he head butted Mr Bridge he said Mr Bridge still had the knife and he ended up with the knife. He admitted stabbing Mr Bridge and said he would have aimed for the leg or somewhere. He said he did not want to murder anyone.

Assessment of objective seriousness

1. Those facts clearly disclose serious objective criminality in circumstances where the victims were confronted by two offenders and there was a significant degree of violence directed towards Mr Bridge and also to a lesser extent violence directed towards Ms Huisman. Such violence was completely unwarranted and unexpected. I have no doubt that the ordeal would have been traumatic for each of the victims. Both general and specific deterrence are important considerations on sentence.
2. The offending also occurred in the context of a breakdown of a domestic relationship. The Court of Criminal Appeal has repeatedly emphasised the need for stern sentences to denounce domestic violence offending (see generally Marjzoub v R [2019] NSWCCA 94 per Hidden J at para 26 referring the principles summarised in Patsan v R [2018] NSWCCA 129.) Also recently the High Court in R v Kilic [2016] 259 CLR 256 HCA 48 stated as follows: "..current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations."
3. In assessing the objective seriousness of the offence of reckless wounding in company (victim Jamie Bridge), I have taken into account the following factors: 1. The nature and extent of the violence used. The victim was tasered twice and stabbed twice by this offender. 2. There were two weapons used during the commission of the offence, firstly a taser and secondly a knife. 3. The injuries occasioned to Mr Bridge were described in the Agreed Facts as follows: "A stab injury to the chest penetrating four centimetres, requiring six sutures and a one centimetre stab wound to his arm above the right elbow requiring two sutures." I regard those wounds as being towards the lesser end of seriousness recognising that the offence can include much more serious wounds. 1. I am satisfied the offence can properly be described as an episode of domestic violence. 2. There was some limited degree of planning and circumstances where I am satisfied the offender armed himself with both the knife and the taser before leaving his vehicle.
4. I note at this stage that it was submitted during the sentencing proceedings on behalf of the offender that the Court could not find that the offence is objectively more serious by reason of the fact that it occurred within a domestic violence context (see defence written submissions, Exhibit 5 part 3) Specifically, it was submitted that there was no evidence that the victim Jamie Bridge was in a relationship with Ms Huisman and hence, the substantive offence is not a domestic violence offence (s 11 Crimes (Domestic and Personal Violence) Act 2007.)
5. Also it was submitted that the offence of reckless wounding in company was not directed towards Ms Huisman, it did not involve any type of conduct directed at her as is ordinarily required in relation to sentencing policy regarding domestic violence offences, (see defence written submissions part 7) namely, that ordinarily domestic violence offences relate to aggression by men towards women.
6. Further, it was submitted that the Court could not find beyond reasonable doubt that the offending was motivated, in part, by a desire to dominate or control Ms Huisman, as distinct from being the result of anger or revenge.
7. In my view those submissions are entirely misconceived if what is being suggested is that domestic violence sentencing policy is so constrained. In this matter I am satisfied beyond reasonable doubt having regard to the circumstances in which the offending occurred together with the admissions in the accused's record of interview with police, inter alia, that he knew that Mr Bridge wanted to take April Huisman away from him and further, that he wanted to scare him, that the offending was motivated by a desire to exercise control over Ms Huisman effectively to dissuade Mr Bridge from associating with her. I reject the submission that such offending cannot be properly characterised as occurring within the context of domestic violence.
8. In relation to the offence of reckless wounding in company I assess the objective seriousness as being in the middle of the range.
9. In assessing the objective seriousness of the offence of assault occasioning actual bodily harm (victim April Huisman), I have taken into account the following factors: 1. The nature of the violence used, namely the offender head butted the victim and connected with her nose causing it to bleed. 2. The actual bodily harm occasioned, namely bruising around her eyes. 3. The offending occurred in the context of the breakdown of a domestic relationship.
10. Having regard to those factors, I assess the objective seriousness as being in the middle of the range. Whilst I accept the violence was limited to one blow and the actual bodily harm caused was towards the lower end for this offence, I am satisfied that the domestic violence context and the circumstances in which the offending occurred elevate the overall objective seriousness the middle of the range.

Aggravating features

1. The Crown relied upon three aggravating features as follows: 1. That the offender was on conditional liberty at the time of the offending. I accept that aggravating feature is established in circumstances where the offender was on a s 9 bond for three years imposed on 23 January 2017. 2. The use of a weapon. In circumstances where I have already taken into account the use of weapons when assessing the objective seriousness, I do not propose to double count this factor. 3. That the offence involved a grave risk of death to another person. I accept this aggravating feature is established in circumstances where Mr Bridge was stabbed in the chest with a 25 centimetre knife and there was a four centimetre penetrating wound.

No victim impact statement

1. Whilst there was no victim impact statement from either Ms Huisman or Mr Bridge, notwithstanding the absence of a victim impact statement from either of those victims, I accept this incident would have been terrifying and emotionally traumatic for each of them.
2. One of the purposes of sentencing is to recognise the harm done to each victim (see s 3A (g), Crimes (Sentencing Procedure) Act 1999 (NSW)).

Subjective circumstances

1. The offender is now 27 years of age.
2. He has a criminal history as an adult commencing in 2010 when he was dealt with for an offence of drive whilst suspended and fined.
3. In 2013 he was dealt with for an offence of possess prohibited drug and also fined.
4. In 2015 he was dealt with for a further offence of drive whilst suspended and placed on a s 9 bond for 12 months.
5. In 2017 he was dealt with for an offence of drive whilst disqualified and placed on a s 9 bond for three years.
6. Having regard to the offender's criminal history, I am satisfied it disentitles him to the leniency that would be otherwise available to a person of good character.
7. The following material was tendered on behalf of the offender during the sentence proceedings: 1. Exhibit 1 - Report of Dr Martin, psychiatrist, dated 9 December 2019. 2. Exhibit 2 - Sentencing statistics in relation to the offence of recklessly wound in company (s 35(3), Crimes Act) 3. Exhibit 3 - Schedule of comparative cases. 4. Exhibit 4 - Defence written submissions. 5. Exhibit 5 - Supplementary defence written submissions.
8. The offender's background is outlined in the report of Dr Martin (Exhibit 1). Dr Martin interviewed the offender on 5 December 2019 at the Long Bay Correctional Centre.
9. The offender was born in the United Kingdom and came to Australia at two years of age. He described a normal home life and his parents as "good people" who worked in the mental health area. He reported that he was "kicked out of home" at 14 years of age and subsequently had unstable accommodation describing himself as couch surfing and sleeping rough occasionally. He had contact with the Criminal Justice System as a juvenile. He reported that as an adult he was able to achieve stability with his partner Ms Huisman but described that he relapsed into drug use. He reported that he moved out because of his drug use in the weeks before the offending.

Education

1. The offender reported that he left school in Year 10 and described himself as a "smart arse".

Substance use history

1. The offender reported that he first smoked cannabis at 14 years of age. He drank heavily and suffered pancreatitis at 15 years of age. Pancreatitis is a medical condition often associated with alcohol abuse.
2. The offender reported that in his twenties he smoked heroin and then used intravenously. He first used amphetamine at approximately 20 years of age recreationally and more recently on a daily basis. He reported multiple admissions for detoxification and rehabilitation and, in the time period immediately before the offending, he described that he had used "for two weeks straight".
3. I note at this stage that self-induced intoxication cannot be taken into account as a matter in mitigation on sentence (see s 21A (5AA), Crimes (Sentencing Procedure) Act).

Mental health history

1. The offender reported previous contact with mental health professionals because of his contact with the criminal justice system. Dr Martin stated as follows: "He said that he was admitted briefly to the Wyong Mental Health Unit and said that he had been diagnosed with 'borderline personality disorder' although attributed his presentation to the use of drugs. He said he was prescribed medication such as Seroquel Quetiapine (a commonly prescribe anti-psychotic and mood stabilising medication) in the community mental health unit and in custody. He said that he was supposed to be taking this at the time of the offending although had ceased and instead was using methylamphetamine. He said that he has been prescribed Seroquel and Endep (Tricyclic antidepressant) in custody because of 'depression and anxiety'."

Mental state examination

1. Dr Martin noted that the offender was "guarded and suspicious and there was only a moderate rapport". Dr Martin was of the opinion there was no frank psychotic symptoms and no acute cognitive deficits. Dr Martin indicated that the offender had described his stress at his current situation and inferred that his behaviour had been an aberration which he associated with drug addiction.

Opinion of Dr Martin

1. In the opinion of Dr Martin the offender's primary problem is substance use disorder (amphetamines) in circumstances where he has reported sustained use of methylamphetamine. Further, Dr Martin noted as follows: "His history strongly suggests problems regulating his emotions with impulsivity and poor behavioural controls and early contact with the criminal justice system, disrupted education and an unstable environment in his adolescence. His early use of substances should be seen in this context. Rapport was only moderate and it was difficult to gain a detailed account of his mental state although he alluded to paranoia and hallucinations when using methylamphetamine and related the offending to poor judgement associated with having smoked methylamphetamine in the time prior to the offending. He described a somewhat conflicting account of the offending although on direct questioning did not disagree with the general narrative as per the agreed facts. Speculatively my formulation is that the violent offending occurred in the context of anger and suspicion following relationship conflict and jealously fuelled by methylamphetamine intoxication and that his offending did not appear to have occurred in direct nexus to mental illness per se".
2. Dr Martin recommended that future treatment should include the offender undertaking assertive drug and alcohol counselling in custody and also residential drug and alcohol rehabilitation when able. He further recommended Justice Health monitor his current medication. Dr Martin also considered the offender would benefit from behavioural programs to address his criminogenic traits, both whilst in custody and once in the community.

Other material tendered on behalf of the offender

1. The following additional material was tendered on behalf of the offender; sentencing statistics and a schedule of comparative cases. I have had regard to that material recognising the inherent limitations of reliance on such material (see generally Moore v R [2019] NSWCCA 264 at [76] - [77]).

Submissions of parties

1. In determining the appropriate sentences, I have had regard to the oral submissions made on behalf of the Crown and the oral and written submissions of Mr Smith made on behalf of the offender.

Prospects of rehabilitation

1. Any view of the offender's prospects of rehabilitation must necessarily be guarded at this stage in circumstances where he has longstanding substance use issues, which are currently untreated. It is encouraging that he has previously had lengthy periods of time without any offending and that he has expressed an intention to abstain from drugs and engage in drug and alcohol rehabilitation.
2. I have no doubt that it will be a difficult journey ahead for the offender but I am hopeful that he embraces any assistance that is given to him upon release so that he can look forward to a more positive future. At this stage, I am unable to find he is unlikely to re-offend.

Parity

1. The relevant sentencing principle is that offenders being sentenced for like offences should receive like sentences, so that there is no justifiable sense of grievance.
2. The co-offender James Conway (25 years of age) appeared before me for sentence on 13 December 2019. He was sentenced for one offence of reckless wounding in company (s 35(3), Crimes Act) and a further offence of stalk/intimidate was taken into account on a Form 1. He was sentenced to a total term of two years and three months with a non-parole period of one year and four months. The starting term for that sentence was three years discounted by 25% for the plea of guilty.
3. In circumstances where this offender has been sentenced for four offences it is accepted by the parties that there is no direct parity. Further, in terms of culpability it is accepted that this offender was the principal protagonist and that the co-offender was not involved in inflicting any physical violence upon either victim. Subjectively, it is accepted that the court found that the culpability of the co-offender was reduced in circumstances where he had a diagnosis of ADHD which the court found increased his impulsiveness and hence, was causally connected the offending.
4. It was accepted that there was little differentiation in relation to each offender's criminal history and both offenders were on bonds at the time of the offending. Ultimately, I am satisfied that there is no direct parity between this offender and his co-offender, but I accept there must remain some relativity with respect to the sentences imposed.

Totality

1. The relevant sentencing principle to consider with respect to totality is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so the sentences imposed should be concurrent, but if not there should be some accumulation (see Cahyadi v R [2007] NSWCCA 1).
2. It was submitted on behalf of the offender that any degree of accumulation between the two sentences for the offences of assault occasioning actual bodily harm and reckless wounding in company should be modest so as to reflect that there was a single course of conduct.
3. I am satisfied that partial accumulate is warranted in order to reflect the totality of the criminality with respect to the offending concerning each victim.
4. I note that I propose to impose an aggregate sentence. Had I been imposing separate sentences for each offence involving each victim, I would have accumulated the sentence for the offence of assault occasioning actual bodily harm by six months.
5. Further, I am satisfied that there should be only modest accumulation with respect to the offences of custody of a knife in a public place and possession or use of taser in circumstances where the criminality relating to the use of those weapons will be reflected in the sentence for the offence of reckless wounding in company. I consider some accumulation is appropriate in circumstances where I am satisfied there is some additional criminality in possessing those items.

Special circumstances

1. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statute ratio between the non-parole period and the parole period having regard to the offender's need for extensive supervision and treatment upon release.
2. The Crown conceded during the sentence proceedings that it would be open to the Court to find special circumstances.
3. I accept that special circumstances are established having regard to the offender's need for supervision and treatment and I propose to vary the statutory ratio between the non-parole period and the parole period, pursuant to s 44(2B), Crimes (Sentencing Procedure) Act.

Determination

1. In determining the appropriate sentences I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that in respect of each offence no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.
3. I propose to impose an aggregate sentence pursuant to s 53A (1), Crimes (Sentencing Procedure) Act. Pursuant to s 53A (2)(b), the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows: 1. In relation to the offence of reckless wounding in company the starting term for that sentence was four and a half years which I have discounted by 25% for a plea of guilty, leaving a total term of three years and four months with a non-parole period of two years. 2. In relation to the offence of assault occasioning actual bodily harm the starting term for that sentence was 12 months which I have discounted by 25% for the plea of guilty, leaving a total term of nine months. 3. In relation to the offence of custody of a knife in a public place the starting term for that sentence was four months which I have discounted by 25% for the plea of guilty, leaving a total term of three months. 4. In relation to the offence of possess or use taser the starting term for that sentence was 12 months which I have discounted by 25% for the plea of guilty, leaving a total term of nine months.

Orders

1. Mr Conway in relation to each offence you are convicted.
2. I sentence you to a total aggregate sentence of four years imprisonment to date from 24 February 2019 and expire on 23 February 2023 with a non-parole period of two years and four months to date from 24 February 2019 and expire on 23 June 2021.
3. The first date upon which you will become eligible for parole is 23 June 2021.
4. I have found special circumstances and I have varied the ratio between the time you are required to spend in custody and your time on parole, so I have given you a longer period on parole and I am hopeful that you do get the assistance you need with your longstanding drug issues.

Amendments 21 August 2020 - Decision proofed. 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: 25 August 2020