R v D

R v Bugmy

1. Based on the Offender's account, the Defence sought to argue that the Offender's circumstances particularly his father's kava, alcohol and violence amounted to childhood deprivation and social disadvantage such as to engage the principles enunciated in Bugmy v the Queen. [115]
2. The Crown submitted that these issues do not elevate the Offender's subjective circumstances to those identified in Bugmy. The Crown submitted that the Offender's upbringing, whilst unfortunate, cannot be described as significantly deprived or dysfunctional and the reference to struggling with homelessness and poverty throughout his life was an untested, not supported by other evidence, and should be given little to no weight. Further, there was no connection between the Offender's background and the commission of the subject offence.
3. To engage the principles in Bugmy, deprivation or dysfunction does not have to be significant or profound before it can be taken into account. [116] Further it is unnecessary for a causal connection to the offending be established. [117] However, it is necessary to point to material tending to establish that background [118] and to be such that it reduces the Offender's moral culpability.
4. The description given in the Offender's letter on which the Defence submission was advanced was brief and untested. I am prepared to accept that the Offender has had misfortunes in life which I bear in mind. However, I am not satisfied on the evidence presented that the Offender's background is deprived or dysfunctional such that it reduces his moral culpability.

Criminal Antecedents

1. The Offender has prior criminal history for matters pertaining to illicit drugs, driving and violence. In 2007, the Offender was convicted of breaching an Apprehended Violence Order and was placed on a bond pursuant to section 9 of the 1999 Act. The bond was conditional on obeying reasonable direction for counselling, educational development and drug and alcohol rehabilitation. There is no evidence that it was breached. However, in 2009 the Offender was sentenced to 9 months imprisonment with 6 months non-parole for offences of driving whilst under the influence of alcohol/drugs and driving recklessly/furiously or in a speed/manner dangerous. In 2016, the Offender was convicted in relation to an offence of stalking/intimidating, common assault offences in respect of which he was placed on a bond under section 9 of the 1999 Act for 18 months. In respect of a further matter said to have occurred on the same day of destroy/damage property, a monetary penalty was imposed.
2. Relying on Veen v The Queen (No 2) [1988] 164 CLR 465 at 477-478 the Crown submitted that the criminal history of the Offender was such that retribution, deterrence and protection of society may warrant a more severe sentence noting that the Offender has a previous conviction for the personal violence offence. The Crown submitted that the principles of specific deterrence are relevant to this Offender and that it could not be said that this offence was an uncharacteristic aberration. I infer from this submission that the Crown was seeking to engage section 21A(2)(d) of the 1999 Act.
3. Defence accepted that the Offender cannot be afforded any leniency, however, contended that the history cannot be treated as an aggravating factor. The Defence drew attention to the fact that for approximately 4 ½ years between 2011 and 2015 the Offender did not come to the attention of law enforcement authorities until a driving matter in October 2015. Thereafter, he came to attention of police in May 2016 in respect of matters arising out of a disagreement with the landlord 8 days before the birth of A at a time that it was said to be stressful for the Offender and C.
4. Overall, the criminal history is limited and with the exception of this offence, the previous offences were summary in nature. I note that in cross- examination of Mr Watson-Munro the Crown put to him that the record was "hardly a troubling history." [119] I accept that the Offender's antecedents do not entitle him to leniency. However, I do not consider that in the circumstances any additional emphasis needs to be placed on specific deterrence, retribution and protection of the community.

Mental health issues

1. In his report, Mr Watson-Munro described that the Offender presented with a complex clinical and developmental history characterised by longstanding symptoms of depression and anxiety and a long history of family loss. In addition, Mr Watson-Munro reported that he suffered ongoing adjustment issues referable to relocating to Australia and was in a state of deep distress concerning the nature of the allegations against him.
2. Mr Watson-Munro stated that the Offender acknowledged longstanding symptoms of depression, anxiety and low self-esteem. He recorded that his anxiety commenced at about the time that his family emigrated to Australia in 2000 and was further compounded when his father was involved in the accident. His father's health and uncertain prognosis impacted on all family members and he endeavoured to cope through working two jobs and smoking cannabis as a means of self-medication. Following his parent's passing, his brother returned to be with his sister in Fiji and he was left without immediate familial support. He has since lost his immediate family having had no contact with his wife and children since around 2017.
3. After conducting a Beck Depression Inventory test, Mr Watson-Munro found a depressive disorder (severe and recurring) according to DSM-5 criteria. Mr Watson-Munro found that the Offender endorsed a broad spectrum of symptoms referable to sadness, pessimism, past failure, anhedonia and guilt.
4. Mr Watson-Munro opined that the Offender appeared to have longstanding symptoms of depression arising from traumas in his life and his depression and anxiety have been compounded by the nature of the conviction. He opined that whilst he does not suffer from any major psychiatric disturbance, the depression is severe and recurring suggesting that he should be assessed by a medial practitioner with a view to considering appropriate psychotropic medication. He opined that he would benefit from systematic desensitisation for his anxiety, social skills training, as well as supportive and motivational psychotherapy including Dialectical Behaviour Therapy.
5. In oral evidence, Mr Watson-Munro stated that he had been provided with a copy of the Plaintiff's mental health care plan dated 22 October 2010 (Exhibit 5) together with a referral from Dr Risk dated 7 March 2015 (Exhibit 7). Exhibit 5 recorded an anxiety with adjustment disorder. A K10 assessment found a score of 16. Exhibit 7 shows that Dr Risk referred the Offender to the Centre of Addiction Medicine citing inter alia major depression and substance use.
6. In cross-examination, Mr Watson-Munro stated that the medical material appeared to corroborate the depressive illness and significant difficulties encountered in the Offender's family life. He accepted that depression was a fluid mental illness that can get worse, can get better and can be cured. [120] He added that it can recur and some people go into remission and some people have reactive depression that is reactive to a life event and with the effluxion of time and/or medication and treatment the symptoms resolve and don't come back. He added that for some individual it can recur over life referable to stresses and not coping and other life events it can be biochemical. He accepted that some life trauma can affect persons differently. Apart from self-reporting questionnaires, he stated that it is necessary to look at developmental history, substance use, alcoholism, prior treatment and hospital admissions.
7. Mr Watson-Munro stated that he viewed the Offender's anxiety commenced in 2000 and was further compounded by his fathers' accident. Mr Watson-Munro noted that the K10 assessment suggested he was suffering moderate degree of depression in 2010. He stated that it was clear that the Offender was suffering from depression in the last 11 years and had serious life events. He couldn't say categorically that the depressive disorder remained for that entire period.
8. After being referred to Dr Risk's report in 2015, he added that it was consistent with his life circumstances fluctuating and whilst he could not say definitively that he was depressed in all likelihood he was. Whilst he accepted that Beck test was based on self-reporting he stated that the response were measured as were the K10 answers such that they were not suggestive of someone who is exaggerating to any great extent. He accepted that symptoms of restlessness, agitation and irritability were common experiences of inmates. He also accepted that the Offender's self-reported depression and anxiety got worse after he was convicted and that 11 years after the GP diagnosis the depression is reoccurring and severe.
9. The Crown submitted that the material contained within the report must be treated with very considerable caution as it contains untested hearsay evidence of what the Offender has told Mr Watson-Munro and the Court is not bound to accept it. If accepted, the Crown submitted little weight should be afforded as it is almost five years after the offence occurred and is based entirely on self-reporting by the offender: R v Qutami [2001] NSWCCA 353 at [58].
10. In further submissions, the Crown contended that in neither the report of Mr Watson-Munro nor the Offender's letter was it stated that A's condition caused significant mental anguish. The Crown submitted that the suggestion made in the Defence submission that on 22 May 2016 8 days before the before the birth of A, was clearly a stressful time for the Offender was not supported by any tested evidence and should be rejected.
11. The Defence drew attention to the principles to be applied when sentencing an Offender suffering from a mental illness, intellectual handicap or other mental problem summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]. Consistent with that case, it contended that the need for specific deterrence may be reduced, subject to the findings of Mr Watson-Munro being accepted. [121]
12. The Defence submission was presumably a reference to the third principle in De La Rosa.
13. That principle emanates from R v Tsiaras [1996] 1 VR 398. Relevantly, the principle was explained in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [32] as follows: 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
14. The Defence did not specify that it was contending that the condition of the Offender "materially contributed" to the commission of the offence within the first principle in De La Rosa. The Offender had maintained that he did not commit the offence. The reference to the circumstances surrounding the offending on 22 May 2016 being a stressful time did not reference the Offender's condition. Nor did the Defence reference anything in the report of Mr Watson-Munro or the Offender's letter to the Court that substantiates this.
15. As best as I understand it, the submission was that the Offender suffers from a history of anxiety and depression and the nature and severity of the Offender's symptoms are such that the need for specific deterrence should be moderated in that the custodial sentence may weigh more heavily.
16. Following cross-examination, the Crown made no specific submissions based on the evidence of Mr Watson-Munro. I accept Mr Watson-Munro's evidence which was logical and plausible even though the initial report was based on the Offender's self-reporting. Parts of the history were subsequently supported by the other documents referred to. In the circumstances, I am of the opinion that whilst the need for specific deterrence is not eliminated the need for it is moderated to some extent.

Prospects of Rehabilitation and Likelihood of Reoffending

1. The Crown noted that there is a lack of remorse and contrition on behalf of the Offender drawing attention to the Offender's letter which indicates that it does not directly refer to the offence or the circumstances of the offence. The Crown submitted that the letter seeks to highlight the Offender's perceived shortcomings of C. The lack of insight by the Offender into his offending were said to cause the Court great concern with respect to the likelihood that he may re-offend. Whilst it is accepted by the Offender that he is unlikely to see his children again, the Offender remains a young man and the Crown stated it is not outside the realms of possibility that he may father more children in the future.
2. The Crown argued that the Offender's prospects of rehabilitation are guarded by virtue of the fact that the Offender does not accept responsibility for the offence and there is no evidence to base a finding that the Offender is unlikely to re-offend.
3. Whilst the Defence cited that the Offender is unlikely to re-offend and has good prospects of rehabilitation as mitigating factors, it did point to material on which such a finding could be made.
4. I acknowledge that the Offender has displayed limited insight into the offence. However, Mr Watson-Munro has stated that exposure to the criminal justice system has had a salutary impact in that it has caused him to wake up to the reality of the current situation. His custodial record indicates that he has only one custodial punishment being for failing to comply with work centre routine on 3 October 2020 in respect of which he received 28 days off contact visits. Mr Watson-Munro's report indicated that he has managed to secure employment as a cleaner in the Classification Department and the Visits Centre as a sweeper at the MRRC being a position of trust. Although Mr Watson- Munro recorded that the Offender stated that he would like to see his children when he is released, his letter to the Court records that he accepts that he will likely have nothing to do with his wife and children in the future.
5. The criminal history comprises a number of relatively less serious matters which to an extent appear to relate to drugs and alcohol. In that respect, it appears that the Offender does have some insight into the underlying causes of that offending whilst also limiting his responsibility. There is little evidence of any treatment to date. However, the history indicates the Offender has avoided offending in the past for an extended period.
6. The Offender has acknowledged that he has little support structure in the community and limited formal education. Nonetheless, he has exhibited a relatively strong work history and expressed a desire to eventually move on and live a productive life. Overall, whilst I am somewhat guarded as to the prospects of rehabilitation, the Offender is not without hope and there is cause for some optimism. As best I can determine it, I would assess the likelihood risk of re-offending as medium. I would accept that his prospects overall would be enhanced by engaging in the treatment that Mr Watson-Munro has recommended.

Offer to Plead Guilty

1. From the bar table, the Defence informed the Court that it was its understanding that in March 2020 an offer of some description was raised by the Offender's previous solicitors with the Crown to plead guilty to the offence for which the Offender is to be sentenced. That offer was said to have been rejected.
2. The Crown responded that she was involved in the matter in March 2020 and there was never any discussion between the parties about the matter being resolved and no formal offers from either party were advanced. There was some informal discussion at the Super Callover in which the Deputy Director was involved but to use Crown's words "negotiations never went anywhere." [122] The Crown did draw attention to an email sent by Defence Counsel on 15 February 2021 expressed as follows: This is a preliminary inquiry: Would the Crown accept a plea of guilty to the alternate count in the indictment in full satisfaction of all subject proceedings against our client?
3. Accepting the Crown clarification as to the position in March 2020, the Defence advised that following what were described as an oral offer an email and written representations were forwarded to the Director of Public Prosecutions on 5 March 2021. [123] The Crown acknowledged receipt at 6.27pm that day. The document was titled "Representation to accept plea of guilty to alternate count in indictment - listed for trial: Tuesday 9 March 2021." [124]
4. The trial was in fact listed to commence on 8 March 2021, having been listed for trial twice previously, including the year before.
5. Putting that matter aside, the letter introduced its purpose stating: These representations are made on instruction. The accused seeks to formally offer to plead to the second count in the indictment in full satisfaction of all subject proceedings against him. Thereafter, the letter proceeded to provide an evaluation of some of the evidence and law before adding: Proposed summary of acts In the event that the Crown accepts a plea of guilty to the alternate count, the accused will admit the following acts on his part: -In an effort to make the victim laugh, holding the victim in the air by his torso, under the baby's arm-pits, with both hands and moving him vigorously in the offender's arms side to side, -When the victim was crying, rocking him vigorously in the offender's arms side to side, in an effort to put the victim to sleep -Regularly massaging the victim, including by vigorously rotating his limbs He will admit that these acts were not isolated, but rather occurred on a number of occasions. The accused accepts that the following injuries were caused by these actions: -Subdural haematoma and haemorrhaging, other than that older bleeding identified as being attributable to the trauma at birth; -Fractures to ribs -Shearing fractures, or "metaphyseal corner fractures" to right arm and both legs. He would not accept responsibility for the injuries to the victim's ear. He accepts that by any plea of guilty to this count, he would be admitting each of the elements of the offence, including that the foresight of the possibility of actual bodily harm to the victim.
6. The Defence relied on the said letter to submit that a plea discount should be allowed in circumstances where the Offender was acquitted on Count 1 and convicted on Count 2 being the charge to which it offered to plead. The Defence had proposed a discount of 15-20% although that appeared to be prefaced on the basis of the earlier purported offer of March 2020. [125]
7. To the extent that the letter referred to various admissions to be made by the Offender, the Defence submitted that these may be still found by the Court in the context of the jury's verdict. [126]
8. The Defence contended that where an offer to plead has been made and is rejected by the Crown but is consistent with a jury verdict after trial, that can result in a discount even though there is no utilitarian value. [127] This was said to be based on one of the principles of general application summarised in Regina v Borkowski [2009] NSWCCA 102 per Howie J at [32]. It was further submitted that the Offender should be sentenced as if he had pleaded guilty to recklessly causing grievous bodily harm, even though he did not plead guilty to that charge in front of the jury. [128]
9. The rationale for a discount on sentence in respect of the unrealised utilitarian value of plea which is offered but not accepted was that of fairness to the Offender. [129]
10. It was submitted that offers to plead may also be taken into account in respect of the issue of "special circumstances".
11. The Crown contended that the Offender was not entitled to a discount in relation to the offence in respect of which he was convicted.
12. The Crown submitted that the offer was not accompanied by any suggested facts nor the basis upon which the Offender accepted the elements of the offence. The Crown drew attention to Defence Notice served on 4 March 2021 not indicating that the Offender would plead guilty to Count 2 and the offer set out the acts on which the Offender would admit as part of the plea although again no draft statement of agreed facts were provided to the Crown as part of the plea offer.
13. The Crown sought to distinguish authorities relied upon by the Defence contending that the basis on which the jury found the Offender guilty varied greatly from the culpability that the Offender was willing to accept as set out in the plea offer. It was submitted that the finding of guilty involved an acceptance of the evidence of C that the Offender repeatedly and vigorously shook A, repetitively and violently massaged A on an almost daily basis and as to an incident where the Offender was solely responsible and C heard a noise. That with medical and other evidence was said to have led to the conclusion that an injury to the ear was inflicted by blunt force trauma.
14. To the extent that the Offender's offer included an acceptance of circumstances leading to the A's injuries, it was submitted that these were mildly consistent with the version he gave police on 20 December 2017 and not consistent with Dr Wong's evidence. In the present matter, the Crown submitted that due to the significant differences between the plea offer which it described as a diluted version of both the acts and the injuries any submission that the plea offer is entirely consistent with the outcome at trial should be rejected.

Consideration

1. During the course of argument, I indicated that one approach that could have been taken was for a plea to be entered followed by a contested facts hearing. I was advised that what was discussed proceeding on Count 1 with the only issue at trial being the intention of the Offender and the Offender did not wish to proceed on that basis. I infer from that statement that the Crown was not prepared to withdraw Count 1 in return for a plea on Count 2. Its proposal was not documented. It also did not respond to whether the proposed admissions were going to be contested in the event the Offender entered a plea to Count 2 and the trial only proceeded on the question of intention on Count 1. As I indicated during submissions, these matters cannot be determined on the basis of bar table recollections.
2. In submissions, the Crown referred to in Merrick v R. [130] That was a case where an offer to plead guilty was made four weeks before trial to manslaughter "subject to agreed facts." The Crown responded to the effect that it was not prepared to accept the plea in satisfaction of the indictment for murder. The primary judge had refused to allow a plea discount. The Court of Criminal Appeal dismissed the appeal referring to statements made by Bell J (with whom Giles JA and Carruthers AJ agreed) in R v Johnson [2003] NSWCCA 129 before adding: [120] - Adopting the language of Bell J, the present case is one in which it was available to the sentencing judge to conclude that the applicant's offer was not "fairly open to acceptance by the Crown". That is because it was conditional upon facts to be agreed, any proposed version of which the applicant has never particularised. The only version the applicant has ever propounded, and which he still propounds in this Court, is one upon which a plea of guilty to manslaughter would have been traversed and would therefore have been rejected by the sentencing judge, if not by the Crown.
3. The relevant principles were more recently considered by Gleeson JA (with whom RA Hulme and Button JJ agreed) in Magro v R. [131] In that case, the appeal centred on circumstances where an offer to plead to manslaughter was held to not fully disclose the degree of culpability intended to be acknowledged by the plea and where it was made without any agreement as to the facts of the offending. The primary judge allowed a 10% discount. Gleeson JA noted the long practice of Courts to take into account the offer of a plea of guilty which matches the crime for which the person is ultimately convicted. Although this case concerned the potential utilitarian value of an offered plea, his Honour noted the observations by Johnson J (Hoeben J agreeing) in R v AB [2011] NSWCCA 229 at [30]-[32] as follows: [30] A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts. [31] The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34]. However, as is made clear in Siganto v The Queen, a person who goes to trial is not entitled to mitigation for a plea of guilty. [32] Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.
4. Thereafter, Gleeson JA distinguished R v Merrick stating: [59] - In Merrick, the offer to plead guilty to manslaughter was expressed to be conditional upon it being "subject to agreed facts", and it was not clear from the offer whether the basis of the plea to manslaughter was an unlawful and dangerous act, provocation or excessive self-defence: Merrick at [117]. That was the context in which this Court observed that the offer to plead to manslaughter did not disclose the circumstances and degree of culpability intended to be acknowledged by the offender. [60] - By contrast, Mr Magro's offered plea was not made conditional upon agreement as to a statement of facts and although the offer did not propose any agreed facts, the offer indicated the particulars of criminal responsibility intended to be comprehended by the offer, namely manslaughter by reason of excessive self-defence. The offered plea, if accepted by the Crown, would have constituted an admission by Mr Magro of the essential elements of the offence of manslaughter by excessive self-defence: R v O'Neill [1979] 2 NSWLR 582 at 588, 596; O'Neil-Shaw v The Queen [2010] NSWCCA 42 at [43]. Those elements were that Mr Magro caused the death of Mr Coleman, the fact that his actions were voluntary and accompanied by a mental element of murder, and the concession that his actions were not a reasonable reaction to the threat that he faced. It would have remained for findings of fact to be made by the sentencing judge, by reference to evidence adduced by the parties at the sentencing hearing. Any dispute as to the facts on sentence would have been resolved in the manner referred to in R v AB at [30]-[32]: see above at [55]. [62] - It was open to her Honour to take the view, having observed the conduct of the trial, that had the Crown accepted the offered plea, Mr Magro would not have acknowledged the facts of the shooting as they had been established at trial, and that dispute would have been resolved adversely to him given the difference between the evidence in the Crown case and the defence at trial. In those circumstances, Mr Magro would not have been entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require, and lose, such a contested hearing: R v AB at [32]. [63] - In my view, there was no error in her Honour proceeding on the basis that Mr Magro was not entitled to the same discount for an offered plea, on potential utilitarian grounds, as a person who makes such an offer and would not have required a contested hearing on sentence had the offer been accepted, and would not have lost the contest. [64] - However, I respectfully disagree with her Honour's assessment that there was "no great utilitarian value" from the offered plea. That failed to take into account that, notwithstanding the likelihood that Mr Magro would not have acknowledged the facts of the shooting as they had been established at trial, there was no contest at trial about the fact that Mr Magro fired the gun, that the second shot fired by Mr Magro killed Mr Coleman and that his actions amounted to excessive self-defence. For this reason, together with the errors identified above at [57] and [58], I respectfully consider that her Honour's assessment of the potential utilitarian value as "modest" was an error.
5. Although the Defence offer referred to proposed admissions that the Offender was willing to make, it is not clear from a fair reading of it that the offer was conditional on an acceptance of those admissions. The letter indicated that the Offender "accepts by any plea of guilty to this count, he would be admitting each of the elements of the offence…." If the Crown was unwilling to accept the proposed admissions then it may have been open for the plea to be accepted and the matter proceed by disputed facts hearing and to the extent that those matters were not resolved as submitted by the Defence, then a lesser utilitarian discount would follow. I would observe in any event that it is not clear in the way the Crown is said to have responded to the offer, whether it even considered the proposed admissions in light of its determination to proceed on Count 1. To the extent that the Offender indicated he would not accept responsibility for the ear injury, that matter has been determined favourably to him.
6. In my view, a plea discount is to be allowed consistent with its utilitarian value. Consistent with the timing of the plea and the circumstances, I would allow a discount of 10%.

Assistance In Respect of the Conduct of the Trial

1. The Defence argued that pursuant to section 22A of the 1999 Act, it facilitated the administration of justice significantly by agreeing to a number of lengthy and complex "Agreed Facts" being Exhibit N, O and R. [132]
2. The Crown argued that the Agreed facts didn't significantly reduce the length of the trial and no discount should be permitted. [133]
3. Whilst the trial did take some time, it is apparent that the Agreed Facts (Exhibit N, O) obviated the need to produce CCTV evidence, booking records with Premier Cabs, call records and the need for a number of witnesses to be called including police, hospital staff and staff from FACS. The Agreed Facts also facilitated the shortening of other witness evidence given in the proceedings. Exhibit R obviated formal proof of a number of relevant events. In all the circumstances, I accept that some reduction should be allowed in relation to the facilitation of the course of justice.

COVID-19

1. The Defence submitted that COVID-19 restrictions and effects on inmates in custody may affect the degree of hardship that the prisoner endures above and beyond the usual effects of incarceration. Earlier today, the Defence highlighted the added impact of the Delta variant and circumstances at the Parklea Correctional Centre where the Offender is presently held in custody.
2. Whilst there is no specific evidence in this regard, I accept that the circumstances are such that the present COVID-19 pandemic is making incarceration more onerous generally particularly in terms of visitation and need for physical distancing. How long this situation will last cannot be known. Once COVID-19 has entered the correctional system, early parole may be available pursuant to section 276 of the Crimes (Administration of Sentences) Act 1999 (NSW).
3. Nonetheless, it is appropriate that I take this into account. [134]

Special circumstances

1. Both parties accepted that pursuant to section 5(1) of the 1999 Act having considered all possible alternatives no penalty other than imprisonment was appropriate.
2. The Crown argued that the matter calls for the imposition of a significant period of full time custody and such a sentence will (if the statutory ratio is preserved) afford the Offender a period over which to readjust to life in the general community. Having regard to the nature of the criminality in this case, it is submitted that any variation of the statutory ratio would result in a sentence that would inadequately address those considerations.
3. The Defence urged to making a finding of "special circumstances" on the following grounds:

• Mental Health issues (having never been assessed or treated by a psychologist or psychiatrist before);
• Addiction issues;
• Need for rehabilitation;
• Corresponding need for lengthier period of supervision;
• The history of the plea offer to the subject charge;
• The time spent in the community pending commencement of proceedings (16 months).

1. The plea discount is to find reflection in the overall sentence.
2. In light of my acceptance of the desirability of undergoing the treatment recommended by Mr Watson-Munro, the need to address his mental health issues and the need for a longer period on parole, I am satisfied that a finding of special circumstances should be made to allow some variation to the statutory ratio in section 44 of the 1999 Act bearing in mind the period that would otherwise be provided had no variation been made.

Commencement date

1. The Crown accepts that any sentence imposed will date from the date of the Offender's refusal of bail in this matter - namely 20 December 2017.
2. The Defence submitted that in the exercise of discretion a relevant factor is the time between the events that are the subject of the charge and the actual commencement of proceedings against the Offender-some 16 months. The Defence submitted that it would therefore be appropriate for the Court to notionally backdate the commencement of the sentence to a date before the Offender went into custody.
3. I propose to commence the sentence from 20 December 2017. I see no basis in principle to commence the sentence on an earlier date in the circumstances of this matter.

Sentencing

1. The Crown submitted that general deterrence is of primary importance where there is a lack of insight into the seriousness of the Offender's conduct: Bott v R [2012] NSWCCA 191. Consequent to the failure to take responsibility, the Crown asserted that specific deterrence is also a significant factor.
2. Noting that one of the purposes in section 3A of the 1999 Act is to recognise the harm done to the Victim of the crime and the observations in Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [54] the Crown submitted that the Court would accept the statements made by A's carer on behalf of A and would recognise the harm done to the Victim as harm done to the community. [135]
3. The Crown submitted that where the offence falls well above the mid-range, the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty. [136]
4. The Defence submitted that the standard non-parole period is less relevantly applicable in the present circumstances in light of the plea offer and that this provides the Court with sound reasons to move away from the standard non-parole.
5. The need to have regard to the standard non-parole period applies in sentencing for all Div 1A offences. [137] Accordingly, I have regard to the guideposts provided by the maximum penalty of 10 years imprisonment and the standard non-parole period of 4 years imprisonment for a case whose objective factors affecting relative seriousness fall within the mid-range of objective seriousness.
6. The Offender needs to be punished, made accountable and his conduct denounced. Whilst the Offender's sentence will be finite A will spend his entire life with the effects of severe injuries. Still, the harm to the Victim and community needs to be recognised. Without doubting the love and care he will receive, A will represent a long-term emotional, physical and financial burden upon his carer and the community. He is unlikely to have many of the experiences of life that most people take for granted. I accept that the sentence needs to provide for general deterrence according with the nature of the offence. The need for specific deterrence is somewhat moderated for the reasons indicated. The need for rehabilitation is also to be recognised through the non-parole period to be provided for. The long term protection of the community will also be enhanced in this way.
7. I have had regard to other cases relevant on sentence including Manocha v R [2019] NSWCCA 122; Tepania v R [2018] NSWCCA 247; BJ v R [2018] NSWCCA 231 and most recently R v SS [2021] NSWCCA 56. Each case including this one however has to be determined on the basis of its own facts and circumstances. The Defence accepted that the offending in this instance was more serious than in R v SS.
8. I have departed from the standard non-parole in light of my finding of objective factors affecting relative seriousness but also taking into account the plea offer and the other subjective matters earlier referred to.
9. Taking into account the plea of guilty and taking into account my finding of special circumstances, I would sentence the Offender as follows: 1. The Offender is convicted. 2. The Offender is sentenced to a non-parole period of 3 years and 11 months imprisonment commencing 20 December 2017 and expiring on 19 November 2021. 3. Thereafter, the Offender is to serve an additional term of 2 years and 4 months imprisonment from 20 November 2021 to 19 March 2024 during which he shall be eligible to be released to parole. 4. The Offender's earliest possible release date is 19 November 2021.

Endnotes

1. Count 1 on indictment.
2. Count 2 on indictment.
3. MFI 1 Crown written submissions, dated 29 June 2021; MFI 2 Fact finding proposed by the Crown, dated 29 June 2021; MFI 4 Crown Supplementary written submissions, dated 9 July 2021; MFI A Defence written submissions (undated); MFI B Defence supplementary written submission (undated).
4. T 757.48-.50.
5. T 182.15-.21.
6. T 699.44-.50.
7. T 180.20-.32.
8. T 181.19-.31 and 248.30-.33.
9. T 181.41-.42.
10. T 114.4-.9.
11. T 70.34 (Sentence).
12. Unreported 11 March 2021.
13. MFI B p2.
14. T 43.47-44-.9.
15. T 119.17 and T 233.23-.25 and T 693.18-.21.
16. T 562.30-50.
17. T 142.35.
18. Exhibits L and M on trial.
19. T 243.9.
20. T 716.43.
21. T 719.13.
22. T 720.25.
23. T 720.14.
24. T 695.26-.696.8.
25. T 127.33-.38.
26. T 674.28.
27. T 674.46+.
28. T 675.
29. T 675.42-51.
30. T 733.
31. T 735.10.
32. T 20.36-.41 and T 24.9-.27.
33. Exhibit A, report of Dr Wong dated 07 June 2021 at [26] (Sentence) and T 17.25-.28 (sentence).
34. T 733-.21; T 734.27-.34.
35. MFI A p6 (Sentence).
36. MFI B p5 (Sentence).
37. MFI A p7 (Sentence).
38. T677-.45.
39. T 674.22-.25.
40. T 674.35-.40.
41. T 675.18-.26.
42. T 27.31-.38 (Sentence).
43. T 768.40-769.28.
44. T 726.27.
45. T 730.32.
46. T 727.43.
47. T728.38.
48. T725.41.
49. T726.19.
50. T 80.10.
51. T80.39.
52. T80.44.
53. T81.9.
54. T 70.32-71.10 (sentence).
55. MFI 4 at [22].
56. T778.8-.49.
57. From C's diagram and evidence of visiting workers: Exhibit O.
58. T 73.11-.14 (sentence).
59. T 41.9-.49.
60. T 409.44-410.50
61. T 412.34-.42.
62. T 109.33-110.18.
63. T 420.1-.31.
64. T 421.18-.34.
65. Exhibit 9 Q and A 41.
66. Exhibit 9 Q and A 42-48.
67. T 412.45-413.12.
68. T 293.9-.16.
69. T 421.36-.43.
70. T421.42.
71. T 651.30-.47.
72. Exhibit 10 Clip 1.
73. Exhibit 10 Clip 2.
74. As per Regulation 9(1)(a) and (c) of the Crimes (Sentencing Procedure) Regulation 2017 (NSW).
75. Section 30E of the 1999 Act.
76. MFI 1 at [7] (Sentence).
77. MFI 1 at [8] (Sentence).
78. Exhibit A, report of Dr Wong dated 07 June 2021 at [25] (Sentence).
79. Exhibit A, report of Dr Wong dated 07 June 2021 at [27] (Sentence).
80. Exhibit A, report of Dr Wong dated 07 June 2021 at [30] (Sentence).
81. Exhibit A, report of Dr Wong dated 07 June 2021 at [31] (Sentence).
82. Exhibit C (Sentence).
83. Exhibit C (Sentence).
84. T 758.5-.9.
85. T 28.31-.43 (Sentence).
86. T 31.18-32.33 (Sentence).
87. T 34.14-.23 (Sentence).
88. Exhibit B (Sentence).
89. T 251.1-.5.
90. T215.15.
91. T215.9-.33.
92. Exhibit B at [17] (Sentence).
93. T 42.28-.36.
94. Exhibit B at [32]-[45] (Sentence).
95. T 678.
96. T 603.2.
97. T 677.16.
98. T 677, L30+.
99. T 72.43-73.11.
100. T 73.35-.37.
101. T 115.45.
102. T 116.3-.5.
103. T276.29.
104. T276.35.
105. See R v SS [2021] NSWCCA 56, per R A Hulme J at [39] and R v Smith [2005] NSWCCA 286 per Latham J at [54].
106. See also Beavis v R [2018] NSWCCA 248.
107. MFI 1 at [29] (Sentence).
108. MFI 1 at [30] (Sentence).
109. MFI 4 at [15] (Sentence).
110. T 73.42 (Sentence).
111. Rossall v R [2021] NSWCCA 200 per Garling J (Bathurst CJ and Rothman J agreeing); Kelly v R [2021] NSWCCA 173 at [38]-[39] per Bell P (Rothman and Bellew JJ agreeing); Fisher v R; R v Fisher [2021] NSWCCA 91 at [70] per Fullerton J.
112. Exhibit 1.
113. Exhibit 4 (Sentence).
114. Exhibit 4, p4 (Sentence).
115. (2013) 249 CLR 571.
116. Hoskins v R [2021] NSWCCA 169.
117. In Perkins v R [2018] NSWCCA 62 per White JA at [78]-[80] and Fullerton J at [31] and R v Millwood [2012] NSWCCA 2 per Simpson J at [69].
118. Bugmy at [41].
119. T 59.18-.19 (Sentence).
120. T 61.2 (Sentence).
121. MFI A p11 (Sentence).
122. T 76.33 (Sentence).
123. T 75.36-.40 (sentence).
124. Exhibit 2(Sentence).
125. T 76.13-.14 (Sentence).
126. T 78.27 (Sentence).
127. Oinonen v R [1999] NSWCCA 310; R v Johnson [2003] NSWCCA 129.
128. R v Cardoso (2003) 137 A Crim R 535, and Magro v Regina [2020] NSWCCA 25.
129. See Magro at [54], citing Merrick v R [2017] NSWCCA 264.
130. [2017] NSWCCA 264.
131. [2020] NSWCCA 25.
132. R v Spinks [2021] NSWCCA 322 at [75] and Droudis v R [2020] NSWCCA 322 at [76].
133. T 71.39-.49 (Sentence).
134. As per Toller v R [2021] NSWCCA 204 at [25] (Beech-Jones J as his Honour then was with Macfarlan JA and Davies J agreeing).
135. R v Hines (No 3) [2014] NSWSC 1273 (Hamill J) at [77-85]; R v Do (No 4) [2015] NSWSC 512 (Davies J) and R v Halloun [2014] NSWSC 1705 (McCallum J) at [45-48].
136. Z v R [2015] NSWCCA 274.
137. Muldrock v R (2011) 244 CLR 120; (2011) 281 ALR 652; (2011) 85 ALJR 1154; (2011) 212 A Crim R 254; [2011] HCA 39 at [29] and the subsequently amended section 54B(2) of the 1999 Act. 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: 14 September 2021