R v Gary Mackay

Agreed Facts in Respect of the Offences on 8 October 2012 9The offender had been arrested in respect of the offences on 7 September 2012 on 7 October 2012. On the following day, he was entered into Police custody at Wagga Police station. He complained of being ill and was taken by ambulance to Wagga Base Hospital. There he received treatment and a number of tests. At 4pm he asked Police if he could go to the toilet. He was escorted to the main disabled toilet located in A & E and then escaped from the toilet by removing a roof panel and entering the roof cavity. 10The offender was observed a short time later in the hospital and was apprehended by Police who were escorting him back when he broke free from the Police officer's grip and pushed him over and ran off. That Police officer was Constable Fisher. 11The offender then ran into Docker Street where Katey Waldron had just parked her vehicle, registration number BFR 25N. The offender ran to the car and dragged her out of the vehicle and got into the drivers seat. As that was occurring, Senior Constable Matthew Jennings was driving past and observed what was happening. He stopped his vehicle in the northbound lane and ran across and opened the driver's door of Ms Waldron's vehicle to stop the offender. The offender put the vehicle in reverse and drove off, thereby trapping Senior Constable Jennings in the door jamb. He then drove across both eastern lanes and mounted the concrete divide. He continued across the western two lanes and collided into a pole. Whilst that was happening, Senior Constable Jennings was being dragged alongside the vehicle. When the offender hit the pole, Jennings became dislodged and fell onto the roadway. The offender then drove off across both western lanes, mounted the concrete median strip, crossed both eastern lanes and collided with a parked motor vehicle. Police attended and the offender was apprehended whilst trying to decamp. 12The offender was escorted back to Accident & Emergency where he was treated and released to the Department of Corrective Service's custody. Senior Constable Jennings was admitted to hospital suffering from a broken finger, grazing, bruising, body soreness, a cut to the head and a sore knee. He underwent surgery on his broken finger. 13When spoken to by Police about the offences, the offender stated that he could remember going to the hospital under Police guard but that he could not remember the alleged offence.

Antecedents 14The offender was born on 9 March 1983 and was therefore 29 years at the time of the offences. He had a lamentable criminal record going back to 1997 when he was 14 years of age. He had offended on a regular basis since then and his record included charges relating to housebreaking, assault, stealing, drugs and escaping Police custody. On 6 October 2005 he had been sentenced to a period of imprisonment for 6 months commencing on 26 May 2006 for escaping Police custody, together with a sentence of imprisonment for 9 months commencing on the same date for common assault. Since then there were numerous other convictions for similar offences and similar terms of imprisonment. He had also had the benefit of sentencing by way of bond pursuant to s 9 on a number of occasions, and the benefit of prison terms suspended on entering a bond pursuant to s 12. 15Unsurprisingly, his traffic record report also demonstrated offences from 2003 through to 2010, particularly driving whilst an unlicensed driver.

The Offender's Evidence 16The offender gave evidence that he had seen Anita Duffy, Psychologist, on 14 October 2013 at Parklea Correctional Centre and he had given her a truthful history. That history included a long history of violence in his family, together with his use of drugs and alcohol. 17Mr Mackay has two children to a former partner, Jayana, who are aged 16 and 14. They live with his mother in Dubbo. In September 2009 he and his partner Shandell were both taking drugs, including pills, opiates and amphetamines. He had no clear recollection of taking drugs on this day, however, the offences arose over a dispute concerning $50 alleged to be owed by Shandell's father to him. When asked about his recollection of events, he said "I know I went around there and played up". He then went on the run with Shandell and was apprehended and arrested on 7 October 2012. At that time he had been taking alcohol, ice and methadone. 18When taken to the Police cells he underwent detox which led him to be taken to Wagga Wagga Base Hospital. His recollection of 8 October was "bits and pieces" because he was "so out of it". He felt pretty bad about the woman involved with the car and he gave evidence that if he could take it back he would. The same applied to the Police officers involved. Following his re-arrest he was placed in maximum security at Lithgow Correctional Centre. 19The offender described his relationship with Shandell as "a very toxic relationship". As far as he knew she was now in Sydney and was still on drugs. He had "let her go". 20On 20 May 2013, whilst at Lithgow, he was released, notwithstanding that he told them that he was on remand. He was on a methadone program and it was someone at that clinic that told him that the Police were looking for him. In July 2013 when he was subsequently arrested, he was off drugs and not on a methadone program. He last took drugs in early July 2013. 21He spends much of his time in incarceration in high security with restrictions that he could only exercise for one hour a day. Because he was on remand he could not participate in courses which had been a disruption since July 2013. For this reason, he said that he was looking forward to getting sentenced, although he understood that he may be sent to a high security facility at either Goulburn or Lithgow. 22The offender acknowledged that he had spent most of his adult life in and out of gaol doing short sentences. He acknowledged that when he was in gaol he could settle down. He did want to better himself as a person. He was now 30 years of age and had four young children. He had grown up without a father and had done it tough. Gaol had been a revolving door for him but in a way, he acknowledged that it was a blessing. He gave evidence that he had avoided drugs which were readily available in prison to date. 23When cross-examined, Mr Mackay adhered to his evidence that he had told the authorities on his release from gaol on 20 May 2013 that he was still on remand. He did not know that on 20 May 2013 he had been told that he had a Court date on 29 May 2013. He could only recall bits and pieces of the events of 8 October 2012 outside the hospital. He gave evidence that on release he would like to go to rehabilitation for his alcohol and drug problems, but acknowledged that there were more drugs in prison than there were on the outside. However, he hoped to start afresh.

The Report of Anita Duffy dated 4 November 2013 24Ms Duffy took a history that the offender grew up in an Aboriginal community where domestic violence was predominate and that he had witnessed murders, assaults and other acts of aggression. He had used drugs heavily and after a car accident in 1999 where he sustained serious injuries, his drug use increased as a form of painkiller. She noted that he had a significant criminal history and had spent substantial periods of time in custody. He had also found it difficult to adapt to life after imprisonment and bore the hallmarks of institutionalisation. 25The offender grew up in Bourke and Dubbo. His parents currently reside in Dubbo. His father is a pensioner and both parents suffer from health problems. Both were heavy consumers of alcohol and there was much domestic violence. The offender intervened on occasions and was subject to violence himself. He moved out to live with his grandparents, but was protective of his mother. 26The offender's life story was one of alcohol abuse and domestic violence which were rife within his community. He admitted, to his shame, that he had also exhibited violence towards his own partners. He grew up in an atmosphere of extreme violence, being the third eldest in a family of seven siblings consisting of one older sister and six brothers. An older brother is in gaol. 27The offender attended school until aged 16. He studied horticulture through TAFE and worked on farms after leaving school. He has also studied computers at TAFE and when in gaol has done literacy and numeracy courses, as well as a course in business skills. 28In a motor vehicle accident in 1999 he suffered severe physical injuries but also a closed head injury which impacted on his cognitive functioning, affecting his memory and aphasia (word finding). He received speech therapy which improved his verbal articulation, but still suffers the effect with headaches on the left side of his head and poor memory, together with a propensity towards being impulsive. 29He has suffered other misadventure, having been stabbed, shot and even run over. He drank alcohol from the age of 13 and sniffed petrol. He also used cannabis at that age but graduated to amphetamines, first smoking and then injecting. He first used heroin from age 14 and following the motor vehicle accident in 1999, he became addicted to morphine. He has also abused Oxycontin and other narcotic related substances including ice, which he turned to after his release in 2001, Zanax and benzodiazepines. 30Since he has been in custody the offender has detoxified and no longer takes any medication, including methadone. 31Ms Duffy took a history that the offender used a lot of ice and Zanax on the day of the first offences, namely, 7 September 2012. That caused him to act quite irrationally and he was very agitated and paranoid prior to his arrest. He attributed his offences to his excessive use of drugs and intoxication. 32The offender underwent assessment by way of a number of tests. Ms Duffy concluded that his risk assessment indicated a person with a high propensity for recidivism who required intensive and focussed intervention during his term in custody and upon his release. His background was one of "deprivation and instability, marked by witnessing scenes of extreme violence, including murder, as well as being subjected to bashings and beatings by his family, particularly when he tried to intercede in domestic violence disputes between his parents". Hence, his early life was shaped by violence which he also engaged in, particularly when affected by alcohol or drugs. His education was limited due to early incarceration in Juvenile Justice institutions, although he has participated in some programs whilst in custody. To his credit he wishes to undertake further education, however, his current classification indicates that when sentenced he will be incarcerated for the majority of his sentence in maximum security, which may give him fewer opportunities to participate in more intensive programs such as IDATP (Intensive Drug and Alcohol Training Program) conducted at John Maroney Prison. Other programs he may be eligible for include a violence prevention program, and other programs specifically targeted to Indigenous offenders. Ms Duffy concluded: "Mr Mackay has been substantially disadvantaged in life and it is though he would need further considerable rehabilitation intervention to address his risk factors for further offending. He has also spent considerable periods of time in custody, and shows signs of institutionalisation, including his inability to cope adequately with the pressure and demands of life after his release, such that he has frequently reverted to drugs use ... A targeted exit plan would be help him reintegrate more effectively in the community. He would require monitoring and support while on parole, particularly in relation to employment, accommodation, drug counselling and dealing with the demands of life."

Submissions on behalf of the offender 33Counsel for the offender acknowledged that the period of time in custody was 6 months and 19 days already served, and that in accordance with the totality principle, I would backdate his sentence somewhat. Counsel also submitted that the offences were appropriate for partial accumulation. In respect of the offences on 7 September 2012, Counsel noted the following: The victim was the partners father. He went there for a legitimate purpose, that is to collect $50. He kicked the door in then left the premises. He had been taking drugs. Shandell remained with him. In mitigation he had expressed a deal of remorse. He entered a plea of guilty at the first telephone callover and it was not disputed that he should receive a 25% discount. 34In respect of the second sequence of offences on 8 October 2012, Counsel submitted that these were more serious. He had committed the offences having escaped from Police custody at Wagga Base Hospital. 35It was submitted that the Court would not impose a standard non-parole period (i.e. 3 years in respect of s 154C(1)(a)) and that the offence was towards the lower end of the range, relying on R v Barker (2006) NSWCCA 20 and R v Matthews (2007) NSWCCA 294. It was submitted that whilst the offence committed against Constable Jennings was serious, exposing him to a serious risk of injury, those injuries that were in fact suffered were relatively modest. It was submitted that the offences were clearly not planned and that the offender had demonstrated remorse following his early plea in the Local Court. 36Counsel relied on the report of Ms Duffy, referred to above, to submit that the Court should take into account the offender's lifetime of profound deprivation, relying on the High Court's decision in Bugmy v R (2013) 302 ALR 192. 37In respect of rehabilitation, it was submitted that the offender presented as a challenging case, given that he bore the hallmarks of institutionalisation. He would require considerable individual counselling or high intensity programs. It was also a hardship for him that he was likely to serve the majority of his sentence in a maximum security environment and may therefore be less likely for admission to programs such IDAPT.

Determination 38Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 39I have had regard in respect of each offence to the maximum sentence laid down by Parliament, together with the standard non-parole period of 3 years in respect of the offence pursuant to s 154C(1)(a). These are guideposts to be taken into account in considering all of the circumstances of the offending. I also take into account that the offender is entitled to a discount of 25% in respect of the early plea of guilty he has entered to each charge. I am also mindful of the principles of parity, proportionality and avoidance of double punishment set out in Pearce v R (1998) 194 CLR 610 at [45]. 40Section 54B of the Sentencing Act was amended by the Crimes (Sentencing Procedure) Amendment (Standard non-parole periods) Act 2013, which commenced on 29 October 2013. It applies to offences committed before the Act commenced pursuant to clause 4 of Schedule 2. It provides as follows: "54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a nonparole period that is longer or shorter than the standard nonparole period and must identify in the record of its reasons each factor that it took into account. (4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. (5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account. (6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable. (7) The failure of a court to comply with this section does not invalidate the sentence." 41There are significant subjective matters which have to be taken into account in respect of this offender's background, his exposure from an early age to a culture of extreme violence, his consumption from an early age of alcohol and drugs and the effect of a lifetime of deprivation on him, including his institutionalisation over large parts of his life. In Bugmy v R, supra, the High Court held: 1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40]. 2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44]. 3. A background of that kind may leave a mark on a person throughout life and compromise a person's capacity to mature and learn from experience [43]. 42The High Court also noted that Aboriginal Australians, whether they live in remote or urban communities, may be subject to the grave social difficulties discussed in R v Fernando (1992) 76 AcrimR 58 and Kennedy v R [2010] NSWCCA 260. I am satisfied that there is ample material establishing the offender's background here. I am therefore satisfied that the offender's recourse to violence in the circumstances here, albeit fuelled by drugs and alcohol, are such that the offender's moral culpability for his inability to control his impulses must be substantially reduced. 43In respect of the objective seriousness of the offences committed on 8 October 2012, this is a question that needs to be considered separately in respect of each offence. However, in respect of the second of those offences, namely, that concerning s 154C(1)(a) which has a maximum penalty of 10 years and a standard non-parole of three years, I have had regard to the offender's submissions relying on R v Barker and R v Matthews, supra. In R v Barker, Howie J (with whom Basten JA and Hall J agreed) referred to factors relevant for consideration in the assessment of objective seriousness of an offence as follows: "63 It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the types of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle." 44Having regard to those types of considerations here, I accept that the objective seriousness of the offending in respect of that charge was below the mid-range of objective seriousness for offences of that type, but only just below it. The offence in relation to Constable Jennings would fall into the same category. The other offences are at the lower range of objective seriousness. 45General deterrence is a relevant matter and I must take into account the fact that the offences were committed by a prisoner against two Police officers whilst in Police custody, namely, Constables Fisher and Jennings. The injuries received by Constable Jennings could have potentially been far worse, and the conduct involved other road users including Ms Waldron. I am also mindful that the offences on 7 September 2012 were committed when the offender was on parole. 46I have therefore taken into account, as an aggravating factor, in respect of the offences on 8 October 2012, that in respect of two of those offences the victim was a Police officer (s 21A(2)(a)). I do not find, as submitted by the Crown, that the offences involved a grave risk of death to another person or persons (s 21A(2)(i)(b)). There is no evidence to establish the extent of the risk other than that Constable Jennings suffered the injuries outlined above. 47I have also borne in mind that the relevance of general deterrence of having prisoners escape from Police custody and, to a lesser extent, specific deterrence in respect of this offender for the reasons I have outlined above. I am satisfied that special circumstances have been established here based on the need for the offender to be engaged in intensive programs such as the IDATP whilst he is in custody, and following his release on parole, in respect of rehabilitation for drug and alcohol abuse and violence prevention. For those reasons I would make an order varying the ratio of the non-parole period pursuant to s 44(2) of the C(SP)A. 48Section 53 and s 53A of the Sentencing Act provide as follows: "S 53 Multiple sentences of imprisonment (1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence. (2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. S 53A Aggregate sentences of imprisonment (1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) The fact that an aggregate sentence is being imposed, (b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section." 49I note that any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour - see Mill v The Queen (1988) 166 CLR 59 at 63. 50I am mindful that the offences are interrelated in that they involve the consumption by the offender of drugs and alcohol, his arrest in respect of the first sequence of offences on 7 October 2012 and his subsequent detox upon entering custody which led to him committing the second sequence of offences on 8 October 2012. Having regard to the principles of sentencing referred to above and in particular those of totality and proportionality, I propose to aggregate the sentences to be imposed having first assessed the indicative sentences to be imposed in respect of each Count. It is clear that aggregation of sentences pursuant to s 53A must reflect some accumulation of the indicative head sentences - see R v Rae [2013] NSWCCA 9. 51The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process. 52Let me indicate in turn the sentences of imprisonment I would have imposed if I was not using s 53A: A Offences of 7 September 2012 Count 1 - 18 months Count 2 - 2 years 6 months Count 3 - 2 years B Offences on 8 October 2012 Count 1 - 12 months Count 2 - 3 years with a non-parole period of 1 year and 6 months Count 3 - 1 year 6 months Count 4 - 6 months Count 5 - 2 years 6 months. 53I have also had regard to the fact that in respect of each sequence of offences, the offences arise out of the same circumstances and would otherwise warrant some partial concurrency in sentences. 54I convict you of each of the offences as set out above and pursuant to s 53A I impose an aggregate term of imprisonment. I fix an aggregate non-parole period of 3 years and 6 months. I take into account that as at 6 February 2014 you had been in custody for 6 months and 19 days. That period is now 6 months and 27 days. Your aggregate non-parole period of 3 years and 6 months will therefore commence on 18 July 2013 and expire on 17 January 2017. 55I order an aggregate total term of 7 years to commence on 18 July 2013 and expire on 17 July 2020. 56The Court orders that your parole eligibility date is 17 January 2017.

Orders 57I make the following Orders: (1)Convicted on all Counts. (2)I impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act as follows: 1. I set a non-parole period of 3 years and 6 months commencing on 18 July 2013 and expiring on 17 January 2017. 2. I impose a further period of imprisonment of 3 years and 6 months to commence upon the expiration of the non-parole period, commencing on 17 January 2017 and expiring on 17 July 2020. 3. The total sentence is 7 years, comprising the non-parole period and the balance of the sentence. 4. I find special circumstances for varying the relationship between the head sentence and the non-parole period on the basis for the need for an extended period of supervision with the Probation and Parole Service in relation to drug and alcohol treatment and rehabilitation in relation to violence and anger management. 5. I note that the offender is eligible to be considered for release to parole at the expiration of the non-parole period. His parole eligibility date is 17 January 2017. (3)Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act I list the individual offences dealt with in the above aggregate sentence with respective indicative sentences: A Offences of 7 September 2012 Count 1 - 18 months Count 2 - 2 years 6 months Count 3 - 2 years B Offences on 8 October 2012 Count 1 - 12 months Count 2 - 3 years with a non-parole period of 1 year and 6 months Count 3 - 1 year 6 months Count 4 - 6 months Count 5 - 2 years 6 months. 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: 17 February 2014