R v Daetz

PLEA OF GUILTY

1. The offender pleaded guilty but not at the first opportunity that he had to do so and thus the discount that he is entitled to have for the utility of that plea is confined to 5% to be applied to the sentence that would have been otherwise imposed upon a synthesis of objective and subjective material that is before me.
2. The Crown correctly points to s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999 and that this matter is an EAGP matter to which s 25D(2) of the Act applies.
3. The plea was entered five days before the date of trial and there was no compliance with pre-trial notice requirements which required notice of the plea to be given by 23 September 2020; that is 14 days before the date of trial. Thus upon the application of s 25D(3)(c) Crimes (Sentencing Procedure) Act 1999 the discount which the Court applies is one of 5%.

PRE-SENTENCE CUSTODY

1. The offence occurred on 10 May 2019. He was arrested for that on that day. He has been in custody in respect of this matter alone from 5 June 2020 to 5 February 2021, which followed the revocation of Intensive Corrections Orders that were extended to him in respect of offences charged in sequences H66325838 and H69631059.
2. The consequence of this offending so soon after the extension to him of the Intensive Corrections Orders resulted in revocation and the obligation to serve those sentences.
3. There was also a common assault offence which led to a 12 months Community Corrections Order; the reference for that is H70660868. He is in breach of that Community Corrections Order by reason of this offending. I called him up, with his consent, to answer for the breach which he admitted. I revoked that Community Corrections Order but in light of the sentence that he is about to face in my judgement it is inappropriate to impose any further penalty for that offence. Moreover I have been given the assistance of the facts sheet relevant to that offence describing how on 20 October 2018 he and his partner embarked upon an argument in the course of which he clenched his fist leading her to take out her phone and record him. When he asked she confirmed that she was filming his conduct. He tried to grab the phone from her, but she held onto it. There was no injury suffered and the offender left the area. Thus the common assault, although it did involve a modest physical contact, was of relatively low significance, although it was within the domestic violence setting and in the home that the victim was occupying at the time.
4. The question arises as to when I should start the sentence I am about to impose. I am not going to commence this on 10 May 2019 when he was arrested but there should be a measure of concurrence to reflect the principle of totality, bringing to account the misconduct upon which I am now to announce sentence and the earlier misconduct the subject of the other three charges to which I have referred.
5. He has been in gaol for an extended period of time because of this raft of misconduct. I have the custodial record which shows that he was in custody from 10 May 2019 and continuing, and for whatever reason it concludes on 15 July 2019, but there is no question that he has been in custody throughout the period of time to the present. The revocation order was made on 4 June 2019.
6. In the exercise of discretion discussed by Simpson J in Callaghan v R [2006] NSWCCA 58 I propose to commence this sentence on 5 January 2020.

THE IMPACT OF THE STANDARD NON-PAROLE PERIOD

1. The standard non-parole period is a matter that must be brought to account. The provisions introducing standard non-parole periods are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999, in their present form after the decision of the High Court in Muldrock v The Queen [2011] HCA 39. The standard non-parole period for an offence is that which is included in the table to the provisions. It represents the non-parole period for an offence in the table, taking into account only objective factors affecting the relative seriousness of the offence found to fall within the middle of the range of objective seriousness. It is a matter to be taken into account when determining the appropriate sentence along with the maximum penalty, and I must record reasons for setting a non-parole period that is longer or shorter.
2. Objective gravity is assessed upon objective factors affecting the relative seriousness of the offence and these include aspects of moral culpability and, where it is relevant, mental health impairment. A helpful discussion of these principles is found in Tepania v The Queen [2018] NSWCCA 247 by Johnson J beginning at para [110] where his Honour summarised the effect of the provisions, and the purpose behind them in their original form and as amended. At para [112] his Honour continued: "In sentencing for an offence (whether or not a standard non-parole offence), a court should make an assessment of the objective gravity of the offence applying general....principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation, or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with, or materially contributed, to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It is recognised common law that motive, or emotional stress, which accounts for criminal conduct is always material to the consideration of an appropriate sentence:... (cited authority omitted)."
3. I am satisfied that objectively this offence falls below mid-range objective seriousness but not by very much. It does not follow though that the standard non-parole period will apply upon a strict arithmetical application of that finding. Indeed to do so is contrary to the principles enunciated by McHugh J in Markarian v The Queen. (2005) 228 CLR 357. The ultimate sentence is determined upon the synthesis of considerations, objective and subjective, bringing to bear as legislative guideposts the maximum penalty and the standard non-parole period, as matters relevant to the determination.

OFFENCE TAKEN INTO ACCOUNT

1. The Form 1 offence will be brought to account in accordance with the guidance provided by Spigelman CJ in Attorney General's Application Under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 [2002] NSWCCA 518. It will impact upon the sentence for the principal offence requiring an appropriate increase reflecting the need for greater weight to be given to the aspect of personal deterrence and the community's entitlement to retribution for the entirety of the offender's misconduct.

THE FACTS

1. The common assault offence occurred on 28 April 2019 when the victim and his partner, a female, after shopping in Kogarah, travelled to Kingsgrove Railway Station. At 7.32pm the offender was at the railway station, walking down a set of stairs holding a pizza box, at the time that the train carrying the victim and his partner arrived. They disembarked and were proceeding up the stairs. When the offender saw them approach he turned and walked back up the stairs. The victim was carrying grocery bags in both hands with the purchases they had earlier made.
2. When he reached the top of the stairs the offender placed the pizza box on the ground and then turned to face the victim who was ascending the stairs. When the victim almost reached the top of the stairs the offender moved towards the victim and shoved him in the chest with both hands forcing the victim to move back down the stairs, dropping the bags, with the contents being spilled.
3. The female attempted to get between them but the offender pushed her aside. There is no charge before me in relation to that. The victim was concerned that the offender would push the female down the stairs also and he took hold of the offender and they fell to the floor exchanging punches.
4. A male bystander intervened. The victim and his partner picked up their groceries. The offender approached the victim and extended his hand and asked to shake hands. The victim replied, "You're not my mate, piss off". The approach by the offender at that point in those circumstances in that manner is somewhat odd but perhaps explained by the subjective material that is before me.
5. The victim and his partner went home, the offender followed them, and then asked to be admitted, and they refused.
6. On 9 May 2019 the victim was at home with his partner and friends. About 10pm the victim intended to go to the service station. As he was leaving he walked down the common stairs of the unit block when he encountered the offender who was walking up the stairs towards the victim. The victim said, "Mate, I've told you, you are not welcome here. Fuck off, you grub". The victim walked past the offender and continued to head out. As he left he called his partner and told her not to let the offender inside.
7. The offender continued up the stairs towards the apartment, knocked on the door; the victim's partner opened the door and asked him to leave. He did not. A male visitor became concerned and also told the offender to leave. A few minutes later he heard pot plants being smashed on the stairs outside of the apartment. He went to investigate and went half way down the stairs and saw the offender and told him to leave.
8. About 12am the offender again knocked on the apartment door. He was once again told to leave. The male visitor said, "Chris will be back soon, my missus is pregnant, and the neighbours. Can you just go?" Shortly after the victim returned and was told that the offender had been to the apartment. This caused him to become upset.
9. At 12.30am the victim heard a knock on the door and opened it to find the offender on the doorstep. He said, "Fuck off". He shut the door. The offender remained at the door, banging on the door, and shouting "Let me in". After a minute the victim returned to the door and opened it, telling the offender to "Fuck off". The offender tried to push past the victim into the unit and in response the victim shoved the offender with both hands to push him back. In turn the offender grabbed the victim's shirt, the pair then began to wrestle. The victim wanted the offender to leave and not come inside the unit. The victim punched the offender in an attempt to defend himself.
10. There was an exchange of punches and the brawl moved towards and then down the common area stairwell as the victim tried to force the offender to leave the building. They ended up on the ground. During the altercation the offender dropped a knife. The knife had a 10 centimetre blade. The victim yelled out, "Knife". The offender picked up the knife, holding it in his hand.
11. The male visitor approached the offender to usher him away. He collected the offender's Opal card and smashed phone from the ground and returned it to the offender. He then began to walk the offender away from the victim and the victim yelled out, "You Pussy". The offender responded, "Fuck this, Cunt, I've had enough". Meanwhile the victim had armed himself with a metal vacuum cleaner extension.
12. The offender and the victim again entered into a physical altercation exchanging punches. The offender was holding the knife in an upward direction and suddenly lunged towards the victim. The knife struck the victim in his right upper stomach/sternum area. The victim stumbled backwards and the offender fled.
13. The offender was located shortly after by police. He suffered bruising and abrasions in the exchange with the victim.
14. The victim was taken to St George Hospital. He was diagnosed with a 15 millimetre right-sided penetrating chest wound to the lower praecordium (anterior chest wall over the heart). The chest trauma caused a haemothorax (a collection of blood within the pleural cavity), and a haemopericardium (blood in the pericardial sac located around the heart with cardiac tamponade) from a one centimetre heart laceration. This was to the anterior right ventricle of the heart. He also suffered a pneumothorax, that is a collapsed lung from the laceration to the right lung.
15. These injuries clearly amount to grievous bodily harm and are significantly serious in my judgement; indeed perhaps a millimetre more and this matter would be prosecuted in the Supreme Court for a much more serious charge.
16. I have photographs of the victim in hospital showing the wound to the chest and stomach area after the performance of the surgery to repair the damage occasioned.
17. In the course of the surgery the victim suffered a cardiac arrest requiring CPR. Open surgery was performed for the 15 millimetre wound and the laceration to the right ventricle and the right lung. He was discharged on 15 May 2019 to the care of his GP.

THE OFFENDER

1. The offender was born in 1983; he will turn 38 years of age this year. He has an extensive record of antecedents beginning in the Children's Court in February 2002 for larceny. Thereafter he has been before the Court for common assault, damage to property, robbery in company, demand property with menaces, behaving offensively, contravening apprehended domestic violence orders, driving without a licence, not complying with licence conditions, driving with a middle-range prescribed concentration of alcohol, dishonestly obtaining property by deception, assault occasioning actual bodily harm, possessing a prohibited drug, aggravated robbery and another charge of robbery. Those two offences were not proceeded with after a plea of guilty was taken to a charge of demand property with menace, two counts, which was accepted in satisfaction.
2. There are multiples of these recorded offences. Significantly in the offence of goods in custody in February 2014 he was charged with custody of a knife in a public place.
3. The Courts have employed various sentencing options no doubt to address the prospect of rehabilitation such as it might have been.
4. He has spent a significant part of his adult life in gaol, which is a matter to be brought to account. The first custodial period began in 9 September 2001 and that continued through until 16 February 2005; then between 4 April 2006 and 30 March 2007. There was a gap of seven years; then he came back into custody on 9 December 2014 until 21 February 2015; then from 29 April 2016 to 11 July 2016; then on 22 November 2017, and from 10 May 2019 until to date.
5. I have the Intensive Corrections Order breach reports, and the sentence assessment report, and the orders of revocation. The sentencing assessment report is in respect of the offence of larceny for which he was given an Intensive Corrections Order. It is of limited assistance in the present matter other than to confirm his personal circumstances, where he was living alone away from his home, that he had a nine year old daughter with whom he was having weekly contact. She is now 11 years of age according to the evidence I heard today. At that point his most recent partner was pregnant with their child who has since, as I understand it, been born and he has access to her also.
6. He has a history of work experience, including as a landscaper. He attributed the misuse of alcohol as a contributing factor of the misconduct the subject of that report.
7. Before I embark upon the reports I will observe that the offender did not give evidence and the Court is left to some extent in the dark about the background to the misconduct upon which I am to impose sentence. He has no obligation to enter the witness box of course, this being a criminal prosecution with the Crown bearing of the onus of proof upon matters objective and upon which it would rely to demonstrate the seriousness of the offence. His burden of proof is upon the balance of probabilities in his subjective case.
8. The Court is then left to come to judgement upon the material that is before it. It is not for the Court to instruct the parties on what evidence ought to be adduced. That said, it is now a well-established principle, as a result of the decision in Qutami v R [2001] NSWCCA 353, in particular the judgement of Smart AJ, the effect of which appears at item 4 in the headnote in the reported decision in 127 A Crim R 369, enlarged upon by Wilson J in Imbornone v The Queen [2017] NSWCCA 144 at para [57] and following.
9. Thus representations attributed to the offender by his adoptive mother, from whom I heard, and in the two reports that have been tendered in his case, must be approached with appropriate circumstances. The representations from the offender were not under oath or affirmation, and have not been tested by cross-examination. That said, there is some support for the explanation advanced on behalf of the offender found in an earlier decision of the Court of Criminal Appeal, Regina v Daetz; Regina v Wilson [2003] NSWCCA 216, where the offender was an applicant for leave to appeal from proceedings in which evidence was presented regarding a brain injury he suffered in an earlier time of his life.
10. The judgement at para [25] describes the events involving a serious assault by a group of assailants. According to the judgement he was admitted to the Royal North Shore Hospital. The Court had access to the discharge summary which stated that he had suffered traumatic bilateral extradural haemorrhages and left cerebral contusions, skull fracture, and scalp lacerations.
11. In hospital a left fronto-temporal craniotomy was performed for evacuation of an acute extradural haemorrhage. He was discharged from the Royal North Shore Hospital, attended rehabilitation, and a psychologist assessed him on 3 July 2002, and attributed to him the proposition that he was not conscious of any particular problem arising out of his assault other than the extensive scarring with which he was left.
12. Tim Watson-Munro, psychologist, wrote on 3 May 2019, but makes no reference at all to the brain injury suffered by the offender. He found that testing administered revealed a broad spectrum of symptoms referrable to a depressive disorder.
13. His social history is discussed in this report. He was born in Sri Lanka. He was adopted along with his sister from that country. He has a positive relationship with her. His mother told the Court that he was adopted at a very young age, I think seven weeks. His history of schooling is discussed, after which he commenced a chef's apprenticeship in which he completed three of the four years. He left because of the poor wages preferring to work instead as a kitchen hand which paid better. At age 18 he obtained his Responsible Service of Alcohol qualification, worked in hotels, and then shifted to the construction industry and worked as a bricklayer, labourer and landscaper.
14. He undertook training at TAFE, completed Certificates I, II and III in Horticulture, and remained in business as a landscaper for about five years, self-employed. He left after the relationship with his then de facto partner came to an end, and thereafter he was unemployed.
15. He was attributed with representation of long standing symptoms of depression, anxiety and low self-esteem. He evolved into a well-established pattern of drug use which began with cannabis when aged 13. At 24 he began using methylamphetamine. Rebound depression affected him when he was coming down. He evolved into the recreational use of cocaine and heavy use of alcohol which he first began to use at the age of 14.
16. He has had limited treatment for these problems it is said, but that is difficult to understand in light of the antecedent report and the opportunities for conditional liberty that were extended to him throughout his life.
17. Mr Watson-Munro who is prone, I find, to be sympathetic to the subjects of his reports, suggests that he is motivated to deal with his problems because of his representation that he change location to distance himself from undesirable past associates.
18. Psychometric testing was administered. He was found to have "given the impression" of a depressive disorder. The offences with which the report is concerned are the larceny charge and contravening apprehended violence orders; there is no reference here to this more serious matter that has the offender before the Court.
19. Although the offender places reliance upon the report by Mr Watson-Munro I find the report from Dr Richard Furst of far greater assistance.
20. Dr Furst provides a summary of his demographic details and psychiatric history, including depression and anxiety from about ten years ago in his late 20's. His drug and alcohol history is rehearsed. His medical history includes the following: "Mr Daetz was seriously assaulted on 1 November 2001 when he was 18 years of age, after being 'jumped' by a group of assailants. He suffered a brain injury [intra-cerebral bleed] and was admitted to the Royal Ryde Rehabilitation Centre for one month, having left prematurely. Was unable to walk properly and also have (sic) deficits in his speech [expressive aphasia], having suffered a lesions/bleeds (sic) in his left frontal/temporal area. It's stated he had 'never felt the same', consistent with a personality change after the injury. He still struggles with his speech [delay in speaking and stuttering on occasions]. Mr Daetz also reported deficits in concentration, irritability, difficulty making decisions, and impulsivity."
21. In the offence and related issues section he is attributed with representations regarding initial problems that he had with the victim when he, the offender, was jumped by the victim and two of the victim's friends about one week before the altercation on Kingsgrove Railway Station. He "planned", which I think should be "opined", that this was the reason for the conflict on 28 May 2019, the Form 1 offence.
22. In relation to the reckless wounding he indicated that he was in conflict with his partner. He went to the local hotel, after he had a couple of glasses of wine before leaving home, he consumed beer and some Xanax tablets. He was upset and wanted to calm down. He said he came across the victim and one of the victim's mates on his way home from the pub. There was a further altercation. He said that he was concerned about his safety believing that the victim wanted to roll him. This does not sit comfortably with the agreed statement of facts and there has been no explanation proffered to explain the inconsistency.
23. He gained work at a print shop and was so employed at the time of the assessment by Dr Furst. He did not appear to be severely depressed or with elevated in mood, nor psychotic upon the mental state examination.
24. The review of documents included the report from Mr Watson-Munro and the judgement from the Court of Criminal Appeal and his earlier proceedings from which Dr Furst quoted.
25. He diagnosed the offender with "anxiety disorder, features of generalised anxiety and panic disorder [substance use disorder], [alcohol cannabis methylamphetamine and acquired brain injury], [persistent neuro-cognitive disorder]". The diagnosis was then amplified and with regard to the acquired brain injury he wrote: "Acquired head injuries are generally caused by a combination of direct blows to the skull/brain and/or rapid deceleration of the head/skull at impact. Damage to the frontal, parietal and temporal lobes of the brain are common. Bleeding inside the brain is also a common feature to varying degrees. Damage to the frontal lobes of the brain often results in what is commonly referred to as a 'frontal lobe syndrome'. Features of such head injuries and frontal lobe syndrome particular (sic) include high levels of impulsivity, disinhibition, memory problems and personality changes, consistent with the changes reported by Mr Daetz in the years following the head injury."
26. Beneath the heading "Psychiatric and psychological mitigating factors" the doctor writes: "In my opinion, Mr Daetz' offending on 09/05/19 at Kingsgrove was consistent with a long history of impulsivity and poor judgment, with his acquired head injury/persistent neurological disorder stemming from events on 1 November 2001 contributing to those problems. Furthermore, he has conflict with his partner at the time, having consumed some alcohol and taken a quantity of Xanax. There was also some animosity between himself and the victim following events over the prior weeks. Those factors likely contributed to his feelings and expressions of apprehension, anxiety, agitation, and impulsivity, at the time of his offending on 09/05/19 at Kingsgrove, mitigating against the seriousness of his actions."

CONSIDERATION

1. The Crown has made submissions as to the significance of that opinion in the absence of more extensive assessment and investigation however I accept on the balance of probabilities the opinion that has been offered by Dr Furst, which in turn attracts the statements of principle to which I referred from the judgement of Johnson J in Tepania v The Queen ibid. I am also reminded of the decision in R v De La Rosa [2010] NSWCCA 194 at para [177] in the judgement of McClennan CJ at CL regarding the significance of mental health in the assessment of sentencing. The principles are well known and have been stated in various formulations in the authorities. Although his moral culpability might be mitigated by the burdens that are described in Dr Furst's report, at the same time one needs to bring to account the date when he suffered his brain injury and consider that within the timeline provided by his antecedent criminal history and the serious offending upon which he has engaged since including the present offence, the counter-balancing consideration is the need to provide a sentence and structure that will adequately protect the community from the offender, hopefully to see him rehabilitate, if it is possible, and turn away from the lifestyle he has followed.
2. The Crown submitted that impulsivity is not a significant consideration in this matter, and that is so if one takes a narrow view of the term impulsivity and views the conduct as occurring in circumstances involving spontaneity, but in a broader context and read with the inability to properly exercise judgement for which there is ample support in this matter, it would seem to me that the term does have application. At the same time his predicament cannot be other than exacerbated if he persists in using illicit substances, particularly methylamphetamine and probably cannabis, and accordingly it is critical in my view at his stage of life, with his challenges, that he develops the capacity and the discipline to not use illicit drugs and to embrace continuing assistance from a properly qualified health care professional to deal with the consequences of the injury he suffered in the attack upon him.
3. Sometimes we do not get better when we are afflicted with illness or injury and sometimes we require ongoing care and management and this offender presents as such an individual, in my view, on the material before me.
4. I heard from his adoptive mother, as I indicated, I accept her as sincere in all she had to say. She attributes the offender with expressions of regret for having engaged upon this behaviour leading to his predicament but I am not satisfied that these expressions of remorse as described extend to meet what is required by the paragraph dealing with those matters: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.
5. That said there are good reasons why one might come to the view that he has prospects for rehabilitation. First, he has had a positive work history, notwithstanding the burdens that he has suffered, exacerbated I would expect by the misuse of prohibited drugs. He has an ongoing relationship with the mother of his most recently born child and he has an ongoing relationship with the child from his earlier relationship. They are in contact with him in his custodial setting and they have ready access to his adoptive mother and father, and it appears that this extended modern example of family will provide a basis for positivity in his future if he is willing to recognise and embrace that opportunity. His mother will welcome him home, as will his father, when he is released from custody.
6. The offender is convicted of the offence of reckless wounding. I have taken into account the Form 1 offence and I will certify the document to confirm that I have done so.
7. I want to add to what I said with regard to his absence from the witness box. The difficulty in this case for the Court is that it does not know precisely what it was that led to these two occasions of violence that he offered the victim. Clearly there was ongoing animosity and for whatever reason he went to the victim's home to engage for whatever reason not further explained and when rejected in that effort by the victim violence followed.
8. The Crown has pointed to the aggravating factors that are relevant including the conditional liberty and antecedent record, which does not aggravate the offending or the proportionate sentence, but informs the extent to which there ought to be allowed leniency to the offender and also the extent to which specific deterrence should be given appropriate weight.
9. Upon the facts he was repeatedly asked to leave the premises but failed to do so, and although the offence did not occur within the home unit occupied by the victim, it began within the building in which the unit was located and continued on until the wound was inflicted. Although I would not include that as an aggravating factor upon the application of 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 it is part of the factual matrix I bring to bear when assessing the objective gravity of the offence.
10. The offender is convicted of the offence. I find that there are special circumstances; this offender does need an extended period under supervision in the community. I accept that there are prospects of rehabilitation, whether they can be described as good is arguable, and I would not go so far in light of the history that I have before me. I accept his mother's sincerity and that she will do all that she can, together with her husband, to facilitate his rehabilitation, but it is a matter for the offender to take the necessary steps.
11. All of that said, bearing in mind his age, the history of incarceration he has already experienced for past offending, the risk of institutionalisation which is always a matter of concern for such as this offender, I find there are special circumstances.

THE SENTENCE

1. I specify a non-parole period of 2 years imprisonment commencing on 5 January 2020 to expire on 4 January 2022. I impose a further period of imprisonment of 1 year and 9 months to commence at the expiration of the non-parole period during which he will be eligible for parole and I recommend that he be released to parole at the expiration of the non-parole period.
2. I note that he has little history, a very minor history of custodial offences; I think there is only one entry on his custodial record from my memory of the document. I would expect that if he continues in that vein, bearing in mind he has acquired work as a printer whilst in custody he is someone I would expect will earn his parole at the appointed time.
3. I will leave the exhibits in the file for whatever period of time is required by the parties.

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: 30 July 2021