R v Harbourne

Decision: (1) For Sequence 6, taking into account the Form 1 matter and after a 25% discount for the early plea of guilty, the Offender is sentenced to a term of imprisonment of 6 years and 6 months commencing 9 February 2024 and expiring 8 August 2030.
(2) The non-parole period is 3 years and 6 months commencing 9 February 2024, which expires on 8 August 2027, which is the date that the Offender will become eligible to be released on parole.
(3) Direct the Crown to send the Parole Board a letter providing a copy of these reasons, emphasising that the Court recommends that a condition of the Offender’s parole be a proper referral, with all relevant medical records, including these reasons, to Community Mental Health Services for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities if possible, for him to become drug-free.

Catchwords: CRIME — Sentencing — Recklessly cause grievous bodily harm — Objectively serious unprovoked assault — Victim suffered significant injuries — Early plea — Mental health of Offender — Contested diagnosis of schizophrenia — Deprived childhood — Poor criminal history — Homeless — Prospect of appropriate treatment low — Protection of community given significant weight — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way

Legislation Cited: Crimes Act 1900 (NSW) s 35(2); s 61
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 44(1)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 5

Cases Cited: Bugmy v The Queen (2013) 249 CLR
Fitzpatrick v R [2010] NSWCCA 26
Jodeh v R [2011] NSWCCA 194
Pound v R [2015] NSWCCA 54
R v Bloomfield (1998) 44 NSWLR 734
R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v SY [2003] NSWCCA 291
R v Zhang [2004] NSWCCA 358
SS v R [2009] NSWCCA 114
Toole v R [2014] NSWCCA 318;
Waterfall v R [2019] NSWCCA 281

Category: Sentence

Parties: Rex (Crown)
Brett Harbourne (Offender)

Representation: Counsel:
R Stefani (Solicitor) (Crown)
W Tuckey (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s): 2024/52285

Publication restriction: Nil

JUDGMENT

Introduction

The offending

1. On the evening of 9 February 2024, 42-year-old Brett Harborne (“the Offender”), had just finished a period of parole for offences involving violence. He was homeless, high on “ice,” and wandering the streets of Woolloomooloo in Sydney.

2. Outside the chemist shop next to the police station, was sleeping William Evans, a homeless man in his 60s, and nearby was Sang Jun Kim, a younger man, also homeless.

3. For no apparent reason, the Offender approached Mr Evans and woke him up. They had a short conversation, which seemed to irritate the Offender. He then proceeded to take out his apparent frustrations on a nearby wall by punching and kicking it repeatedly. He then bent over Mr Evans, interfered with his property, which was all contained in a plastic bag, and eventually tipped Mr Evans' belongings over Mr Evans’ head before setting upon Mr Evans, viciously hitting and kicking him repeatedly, mostly while Mr Evans was on the ground and unable to defend himself.

4. After more than a minute of this brutal attack, Mr Kim, acting as a “good Samaritan” and at considerable risk to his own safety, intervened. There then followed a punching and kicking match between Mr Kim and the Offender, wherein the Offender landed, at least some, punches and kicks on Mr Kim.

5. Thankfully, Mr Kim was not injured. However, Mr Evans suffered significant injuries, including bleeding around the brain, spinal fractures, and multiple facial injuries involving, not just cuts and abrasions, but a broken nose. He was taken to hospital, where he required surgery to his spine to stabilise the fracture. He was released from hospital three weeks later. I include below a photograph of Mr Evans taken shortly after the incident.

6. The Offender was arrested and charged that evening. He has been in custody since.

7. The Offender has an extensive criminal record. In New South Wales, it comprises 38 pages of charges and convictions. He has been convicted of a wide range of matters, including drug-related offences, violent offences, stalk intimidate offences, break and enter offences, theft offences, offensive behaviour, and one sex offence. He has served multiple terms in custody. On a rough estimate, in the seven years prior to the offending, he spent approximately five years in prison.

8. The offending conduct, which I have tried to described above, is all captured on CCTV footage, which was tendered in evidence. Any consideration of these reasons ought be in conjunction with a view of that footage, which is to say the least confronting and is difficult to capture in words.

The charges

9. The Offender pleaded guilty at the first opportunity to one offence of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW) (”Crimes Act”). This offence carries a maximum penalty of 10 years imprisonment and has a standard non-parole period of 4 years imprisonment.

10. Upon sentence, the Offender asks the Court to take into account on a Form 1 a further offence of common assault, contrary to s 61 of the Crimes Act, carrying a maximum penalty of 2 years imprisonment. The common assault concerns the incident involving Mr Kim.

Early guilty plea

11. The Offender is entitled to a 25% discount from what might otherwise be his sentence for his early plea.

Objective seriousness of the offending

12. The specific details of Mr Evans' injuries are as follows:

13. Lacerations to his nose and left eye

14. Comminuted nasal bone fractures

15. Multifocal facial bone bruising predominantly involving the left face around the cheek and zygoma

16. Right-side subdural haematoma

17. Superficial lacerations to his left foot and one deep laceration to his right fifth toe

18. Undisplaced 1st and 8th rib fractures

19. Mildly displaced unstable T7/8 spinal fracture

20. Undisplaced C7/T1 bridging osteophytosis fracture

21. Mildly displaced L4 vertebral body fracture

22. The laceration to Mr Evans’ right toe was treated with sutures.

23. The T7/8 The fracture was treated surgically on 13 February 2024 with a T6-T9 posterior fixation and C7/T1 fracture was treated with the use of a Miami-J collar (neck brace).

24. Mr Evans was discharged from hospital on 1 March 2024 with the following recommendations:

25. Remain in cervical spine collar until follow-up with a neurosurgeon 6 weeks after injury;

26. Obtain erect x-rays of cervical and thoracic spine prior to follow-up appointment;

27. Follow up with a GP to review wounds; and

28. Paracetamol and tapentadol for analgesia.

29. As at 8 March 2024, Mr Evans could only recall that a male he had never seen before had started hitting him and he woke up in the hospital sore all over and with a neck brace on. He required the assistance of a walking stick and was still wearing a neck brace.

Objective seriousness

Injuries

17. When assessing the objective seriousness of the offending, it must first be necessary to take into account the level of “really serious injury” occasioned to the victim. In general terms, it will often be the case that, the greater the injury, the more serious, objectively, the offence should be seen. However, there is no strict rule or principle which mandates this as the most important factor: Waterfall v R [2019] NSWCCA 281 at [33]. Clearly enough, the injuries here are not just “really serious,” they were significant, they required surgery, and a lengthy period in hospital. They could have been worse but, nonetheless, were extremely serious and would have been extremely painful, which pain would have lasted for at least weeks.

Degree of violence

18. The degree of violence involved in an assault must be a material consideration in assessing the seriousness of the offending: R v Bloomfield (1998) 44 NSWLR 734 at 740; R v Zhang [2004] NSWCCA 358 at [18].

19. Again, the degree of violence could have been worse, but it was, in my opinion, extreme. It cannot be overlooked that the Offender is much younger than Mr Evans. He was also obviously much bigger, fitter, and stronger. Mr Evans would have been terrified.

Recklessness

20. The charge involves the mental element of “recklessness." When considering the objective seriousness, a finding as to the degree of recklessness involved is usually necessary: Pound v R [2015] NSWCCA 54 at [43]. I am satisfied beyond reasonable doubt that, not only did the Offender at the time realise the possibility of actual bodily harm, but he intended that to be the consequence.

Overall

21. Looking at the entire incident, the assault by the Offender on Mr Evans was unprovoked and lasted just over a minute. He commenced with the demeaning act of kicking a plastic bag containing Mr Evans' belongings and emptying the contents of the plastic bag over his head. He then:

22. Aggressively kicked the victim in the head;

23. Braced himself against a tree and kneed the victim a number of times in the head, causing him to fall onto his back;

24. Kicked the victim’s head twice and stepped on his pelvis once when he was on the ground;

25. Punched the victim’s head a number of times; and

26. Kicked the victim’s back twice.

27. The assault caused the injuries I have described.

28. Whilst it is obviously possible to imagine conduct caught by this offence of a more serious nature, because it could have gone on for longer or the injuries could have been worse, I consider the offending to be a serious example of this type of offence. For reasons I will come to, the Offender’s moral culpability is less than might otherwise be expected for various reasons and, to the extend this has relevance to the assessment of objective seriousness, I have factored this into my assessment.

Aggravating factors

24. As I have said, the Offender has an extensive criminal history. He was also on conditional liberty at the time of the offending and has not expressed, any real remorse for his conduct. All of those are aggravating factors to be taken into account.

Mitigating factors

25. As far as mitigating factors are concerned, there is the plea of guilty which I have mentioned, an extremely deprived childhood, and mental health issues which I will describe.

Subjective matters

Moral culpability and Bugmy – The future

26. The central and almost insoluble questions for me are, first, why did the Offender do what he did? Second, how morally culpable should he be held for those actions, and third, what prospects, if any, are there of him being rehabilitated so as to not reoffend?

27. I accept the evidence that the Offender had an extremely difficult childhood, which falls into the category described in cases such as Bugmy v The Queen (2013) 249 CLR 571 and entitles him to leniency in the way described in those cases.

28. It is also common ground that the Offender, who is a long-term habitual consumer of illicit drugs having commenced his drug use in his teenage years, was, at the time of the offending, hopelessly addicted to methamphetamine (“ice”) and was heavily under its influence. In the context of his childhood and the early age he started using drugs, I do not consider his drug use to be the product of a conscious choice by him for which he should be held responsible.

Mental health

29. The Offender has a long history of mental health admissions and treatment. In Queensland, he has spent considerable time under psychiatric care in various hospitals and institutions. One of those stays was approximately six months and another three months. He has been diagnosed along the way by various doctors as being schizophrenic.

30. Dr Richard Furst, psychiatrist, has prepared two Reports which were put before me, and he gave evidence and was cross-examined at the sentencing hearing. Dr Furst is of the opinion that the Offender was, at the time of offending suffering, and continues to suffer from schizoaffective disorder and cognitive impairment, in the form of an acquired brain injury, being persistent neurological disorder.

31. Dr Furst firmly believes that the Offender is not being properly treated by Justice Health whilst in custody and that he should be being medicated with anti-psychotic drugs.

32. Dr Furst puts it this way:

“The diagnosis of schizoaffective disorder was based on the recurrent and bizarre nature of his psychotic symptoms over many years. His symptoms have included paranoid delusions, Capgras’ Syndrome and auditory hallucinations. He also held beliefs about reading other peoples’ thoughts and communications with aliens, symptoms typical of schizophrenia or schizoaffective disorder, not drug-induced psychosis or bipolar affective disorder.

Mr Harbourne is also prone to aggressive behaviour and violence when manic and/or psychotic, often in the context of drug abuse. His disinhibition and lack of self-control when mentally unwell is probably also related to his acquired brain injury in 2002 [frontal impairment].

…

He requires treatment with antipsychotic medication

…

He also required treatment with a mood-stabilising medication, such as Sodium Valproate or Lithium.

He will require drug and alcohol counselling, such as the EQUIPS (Addiction) modules and should also engage in counselling/psychoeducation in relation to his mental illness, treatment needs and to improve his coping skills.

Referral to and step-down/rehabilitation in a psychiatric hospital is also indicated when next eligible for parole, Mr Harbourne being too impaired to find stable accommodation and cope independently and requiring psychiatric and psychosocial support to assist in preventing him from decompensating and re-offending when next released into the community.”

33. Dr Elliott of Justice Health disagrees. He has a diametrically opposite opinion. He is positively satisfied that the Offender does not suffer from schizophrenia.

34. To quote from Dr Elliott’s first Report:

“I am not of the opinion Mr Harbourne suffers from any major mental illness. I note again with respect Dr Furst’s opinion Mr Harbourne suffers schizoaffective disorder, substance use disorders and an acquired brain injury or a persisting neurocognitive disorder, but on my assessment, I found no evidence of current psychotic symptoms or the broader features of a chronic psychotic illness. I also note he has been psychiatrically assessed in custody on three occasions over the last five years and on each occasion, he was not found to have psychotic symptoms or other features of schizophrenia or another major mental illness despite the absence of antipsychotic treatment.

…

I readily acknowledge that Mr Harbourne has an extensive history of psychiatric care in Queensland including of prolonged admissions. I have taken a different view of the collateral documents from that period however. He received a range of diagnoses, including of schizophrenia and bipolar affective disorder and he had protracted psychiatric admissions. Normally this would be a convincing and compelling history for a chronic psychotic illness but I note most importantly the report of Dr Phillips indicates that he continued to use illicit substances throughout those admissions. I was most convinced by Dr Phillips’ report and that her first impression was of recurrent substance induced psychoses although she acknowledged that a diagnosis of a chronic major mental illness specifying schizophrenia over schizoaffective disorder was still a strong possibility. Fifteen years later I contend that time has validated her key point; that as Mr Harbourne has spent increasing periods in custody where, although diverted buprenorphine is relatively widespread it is much more difficult to reliably and regularly access cannabis and methamphetamines, he has not experienced relapses of psychosis despite the absence of antipsychotic treatment. This is not the natural history of an inherent psychotic illness such as schizophrenia or schizoaffective disorder but it is consistent with substance induced psychoses.

…

Mr Harbourne has a diagnosis of multiple substance use disorders. This history has also varied in the telling to various clinicians but based on each of those assessments he presents with a history of cannabis, stimulant, hallucinogen and alcohol use disorders that have waxed and waned over time. The most concerning are persisting cannabis and methamphetamine use disorders. He is now on an opioid treatment program.”

35. In his second Report, he said as follows:

“The additional material provided has firmed my opinion that Mr Harbourne’s offending behaviour was attributable to intoxication in a man with an antisocial personality disorder and substance use disorders. I do not consider that he suffers from schizophrenia, schizoaffective disorder or any other major mental illness. His presentation around the time of the offending mirrors that when he was admitted to St Vincent’s Hospital approximately six months earlier, and when again assessed there two weeks after that admission. On each occasion, he presented with erratic and aggressive behaviour that resolved overnight. On assessment the following day, he was not considered to have a psychotic illness and his presenting behaviour was attributed to intoxication. The description of his behaviour in police cells following his arrest on these more serious charges, whilst they do not represent a clinical opinion, nonetheless describe him as initially intoxicated and belligerent, but within hours he was considered to have ‘sobered up.’ I repeat an observation made in my original report that, immediately following his reception into custody, nursing staff found no evidence of psychotic symptoms and his behaviour was considered settled and unremarkable. I have also had regard to the CCTV and police bodycam footage of Mr Harbourne’s arrest and consider his behaviour consistent with intoxication. I consider it implausible that a relapse of a longstanding psychotic illness so severe that it would lead to an offence of this nature would resolve overnight. I hold the same opinion with regards a substance induced psychosis. In both instances, psychotic symptoms would be expected to persist for longer, even with treatment. My opinion remains that Mr Harbourne has an antisocial personality disorder and substance use disorders and he does not have a major mental illness; an opinion shared by my custodial psychiatric colleagues and by the mental health service at St Vincent’s Hospital.”

36. Dr Elliott also does not, it seems, accept the opinion of Dr Conroy, a highly credentialed neuropsychologist, who also provided a Report and gave oral evidence to the effect that, in his opinion, the Offender's intellectual function falls within the borderline range and doubts that this was in part caused by a motorcycle accident the Offender was involved in. He also adds that, in his opinion, sustained methamphetamine use is also associated with cognitive impairment.

37. Dr Elliott and Dr Furst gave oral evidence at the sentencing hearing concurrently. Neither shifted from their opinion. If anything, they both dogmatically stood by their opinions and strongly disagreed with each other on the central diagnosis and what treatment options may be available to the Offender.

38. Leaving aside Dr Elliott's critique of the neuropsychology opinion, to which I give no weight because it is outside his field of expertise and in any event involved a large degree of speculation and second-guessing of the accuracy of the history as given about the injuries sustained in a motorcycle accident, the psychiatric and neuropsychiatric evidence comfortably demonstrates the following at the time of offending:

39. The Offender has a cognitive impairment as defined in s 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), because, as Dr Conroy explains, he has ongoing impairment in functioning, and ongoing impairment in comprehension, reasoned judgement, learning, or memory, and the impairment results from damage to or dysfunction of his brain. This continues.

40. The Offender, at the time of the offending, had borderline intellectual functioning as that phrase is understood in the Act. This continues.

41. The Offender was suffering from antisocial personality disorder and multiple substance use disorders. Dr Elliott and Dr Furst agree as to this. These disorders continue.

42. The central issue that fundamentally divides Dr Elliott and Dr Furst is whether a diagnosis of schizophrenia is appropriate.

43. As I have said, I have two Reports from both experts which respond to each other's opinion. They also gave evidence concurrently. Not only did they both firmly adhere to their opinion, they were both close to highly critical of the opinion held by the other, although, when pressed, they both did acknowledge that ultimately, such a diagnosis involves an evaluative judgement based on a number of factors about which reasonable minds can honestly come to different conclusions.

44. Dr Elliott considers that the violence exhibited by the Offender at the time of the offending and at other times is a direct consequence of his heavy use of ice. It is drug-induced psychosis. He points to what he considers to be an objective fact that, during his time in custody in New South Wales when he has not had access to ice, there is no record of him with psychotic symptoms.

45. Dr Furst considers that, firstly, the history of the many diagnoses of schizophrenia and the lengthy hospital admissions is itself satisfying of the diagnostic criteria, but also points out that, whilst under the care of the medical system in Queensland for about seven years when he was being treated with medication for schizophrenia, he did not come to the attention of the authorities for criminal activity. However, when in New South Wales when not under any medication, every time he is released from prison he is unable to behave other than in a violent and antisocial manner.

46. Dr Furst is convinced that his diagnosis is correct and thinks, in any event, that, even if he is wrong, if the Offender was treated with antipsychotic drugs even if he does not have schizophrenia, they may well assist in alleviating the symptoms. Dr Elliott disagrees.

47. Both doctors agree that the Offender taking ice makes the entire diagnostic process fraught with difficulties because that drug use can mask and present as symptoms of mental health issues and, in any event, is likely to interfere with any drug therapy because, as Dr Elliott explained, the strength of ice is such that it overwhelms the therapeutic effect of antipsychotic drugs because they both operate on the same parts of the brain for their effect. Both doctors agree, and I consider this to be obvious, that the Offender’s drug use does bring on violent, apparently psychotic, episodes where he is a danger to both the public and himself. In such a state, he should not be on the streets. This is so, regardless of whether he has schizophrenia or not. If he is to continue to use ice, he will continue to be dangerous.

48. It is common ground that, at the time of the offending, the Offender was suffering from some mental health issues, albeit none that are described as major mental health diagnoses. It is also common ground that, at the time of the offending, he had reasonably serious cognitive deficiencies, which would contribute to his inability to control himself and make sensible decisions.

49. Those matters of common ground, together with the Offender’s deprived upbringing, go some way to reducing the moral culpability of the Offender when I assess the objective seriousness of the offending. I have factored that into my assessment of objective seriousness. They also provide an explanation for why he did what he did and why he has shown no apparent remorse. It is also instructive as to what might happen in the future if and when he is released from custody. In other words, what are his prospects of rehabilitation and what is the likelihood of him reoffending?

50. I have before me two very experienced and highly credentialled specialist medical practitioners who hold diametrically opposed views as to a diagnosis of schizophrenia.

51. Having read and listened to their evidence carefully, I find myself unsure as to which one is correct. Both make compelling arguments.

52. As it is the Offender who has the onus of proof – on the balance of probabilities – of proving this diagnosis, I am unable to take a diagnosis of schizophrenia into account as a mitigating factor or as going to his moral culpability.

53. Having said that, I do not think it really matters very much. The fact is the Offender was high on ice at the time of the offending. It is agreed by everyone that caused him to become psychotic, which was the direct cause of his actions that night.

54. The Crown submits that I should find, because the drug use was a significant contributing factor, that it cannot be used to discount the moral culpability of the Offender because ultimately his original choice to take up drugs was a free choice for which you should be held responsible: see cases like R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; Toole v R [2014] NSWCCA 318; R v SY [2003] NSWCCA 291; and Jodeh v R [2011] NSWCCA 194.

55. Whilst it is clear that being intoxicated on drugs is not an excuse or mitigating factor, it can provide an explanation for why a person behaved in a way. The question is should he be held responsible for becoming a drug addict? I do not think he should be. I am satisfied that the reason the Offender took up drugs at a young age was because of his deprived upbringing for which he is not responsible and, in any event, whatever decision he made long ago to try drugs was not a decision to become addicted to drugs and it was made at such a young age that it is not a decision for which he should be held responsible for the rest of his life: see cases like SS v R [2009] NSWCCA 114*;* and Fitzpatrick v R [2010] NSWCCA 26*.*

56. I am satisfied that, at the time of the offending, the Offender was heavily under the influence of ice. This was because of his addiction to drugs, which was partly a result of his difficult upbringing. The drug use was a substantial contributing factor to the offending when combined with his underlying mental health issues and his cognitive deficit.

57. His drug use is not an excuse for his behaviour, but it does provide an explanation, which is an important matter.

The future

55. The question then becomes what is the future for the Offender?

56. Dr Furst’s opinion is that, if he was to be properly treated for schizophrenia whilst in custody and beyond, he is capable of living a life as a good member of the community, albeit it will always be very difficult for him.

57. Dr Furst accepts that, unless and until he becomes free of his drug addiction, he will continue to behave in the way his history suggests. That is, from time to time, whilst high on ice, he will commit crimes, sometimes involving violence. It is therefore critical that every effort should be made to free him from his addiction. This is no easy task when dealing with a homeless man with mental health issues.

58. Dr Elliott paints a gloomy picture as to the mental health system in this state. He, of course, does not accept that the Offender needs to be treated for schizophrenia. However, his position is that, even if he is wrong, the Community Mental Health system will not in any way assist the Offender because, as he describes it, people who are homeless and with a history such as the Offender simply do not stay in the system very long. They end up untreated and living on the streets where inevitably they reoffend and find themselves back in gaol, and so the cycle continues. Drug rehabilitation centres are likely to also reject him because he is homeless and has a history of violence.

59. Dr Furst describes this attitude as “nihilistic". I think Dr Elliott's response would be that it is realistic. It is, at the very least, disappointing and disheartening. Dr Furst is much more optimistic and seems to have greater faith in the system and believes that, if upon his release from custody the Offender is referred to Community Mental Health, there is a chance that he can be properly treated for his mental health issues, but only if the Offender decides that he wants to become drug-free. Whilst acknowledging that getting off ice is very difficult, Dr Furst believes there is some prospect of the Offender doing so. If he can achieve all of that, he is unlikely to reoffend.

Resolution

60. This is a very difficult case because the Offender finds himself lost between the boundaries of the justice system and the mental health system of this state.

61. On the evidence, between those boundaries or front lines, there is a “n**o-man’s land” where people who are in the justice system, but really belong in the mental health system, find themselves. That “no-man’s land” is ungoverned, scary, unpredictable, and ultimately extremely dangerous.

62. Effectively, what the Offender’s counsel and solicitor were asking me to do was to make, not just a finding, but some sort of declaration that the Offender is suffering from schizophrenia and to then order both Justice Health and thereafter Community Mental Health services to take the Offender on and treat him.

63. I have no power to do any of those things. I can make a finding as to a medical diagnosis, which will be a finding, on the balance of probabilities, based on evidence and legal reasoning. It is not the same as a medical diagnosis and I have no doubt that most doctors would take very little notice of such a finding when forming their own opinion.

64. In any event, I have no power to order Justice Health to do anything, nor can I control what happens after the Offender is to be released.

65. I will say this. The Offender needs help. Society ought provide that help, if for no other reason than to protect the Offender and others from the Offender’s violent conduct. That help is not being provided by simply putting him in gaol for longer and longer periods, only for him to be released, not treated, reoffend, and return to custody.

66. When I come to consider the sentencing criteria in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), the objective seriousness of the offending is very high. However, I accept that the moral culpability of the Offender is reduced because of his mental health and cognitive issues, together with his deprived upbringing, all of which also points towards some leniency in his favour.

67. The Offender has a truly terrible criminal record. I am satisfied that, unless and until he is properly treated for both for his mental health issues – whatever they may be – together with his ice addiction, upon release from custody it is close to certain that he will reoffend and, eventually, will either kill someone or will himself be killed when someone defends themselves, which will happen if he continues to wander the streets of Sydney viciously assaulting people. He has not shown any real remorse or contrition, but I think that is explicable by the mental health issues that I have identified and I do not hold that against him, although, it does not augur well for the future. I should say in this regard there is some evidence that the Offender is seeking out, in the sense of demanding, medical treatment for what he believes is his medical condition and says he is keen to stay free of drugs. He is, at the moment as far as I can tell, drug-free, but that is probably because he is in the controlled environment of a prison. I do not think he is a fundamentally bad or evil person. I accept that his conduct is in large part beyond his control and I take into account society’s failure to look after him.

68. His subjective case includes the mental health issues I have identified, his deprived upbringing, together with some recent evidence in custody of a desire to get free of drugs.

69. As far as specific deterrence is concerned, whatever I do will not make the slightest difference to whether he reoffends. General deterrence is of course important. It is critical that members of the community understand that violent offences of this kind must and will be met with stern sentences by the Court, regardless of the Offender's particular circumstances. That being said, the Offender does not present as an attractive vehicle to be made an example of.

70. Rehabilitation, chances of reoffending, and protection of the community, to my mind, are the weightiest factors here.

71. The very factors that entitle him to leniency also point in the opposite direction. Those same factors very much weigh against the Offender when I consider the future.

72. It is difficult for me to predict that future. On balance, I think it is unlikely, and this is a discredit to society, that he will receive proper treatment, either in custody or beyond so as to assist in rehabilitating him. If that be right, then his chances of reoffending are not just high, they are close to inevitable. As he is prone to violence, at least when he takes ice, he will continue to be a danger to the community.

73. I am not prepared to give up on the Offender and conclude that there are no prospects of rehabilitation, but I am afraid to say that they must be very guarded, and I have to give significant weight to protecting the community.

74. The maximum term and standard non-parole period imposed by Parliament is an important guidepost and a reminder as to how seriously the community treats assaults causing grievous bodily harm. The maximum term, less 25% for the guilty plea is 7.5 years.

75. I have decided that the appropriate sentence for the offence, taking into account the Form 1 matter and after deducting 25% for the early guilty plea, is 6.5 years imprisonment. I appreciate that, after the discount, this is close to the maximum but consider that I have to do something to protect the community. I am concerned that such a long sentence will institutionalise him but think that has probably already occurred.

76. I consider that a much longer period on parole than would be usual is imperative, not just for the Offender's future, but for the protection of society, and I make a finding of special circumstances under s 44(1) of the Sentencing Procedure Act and consider the Offender should become eligible for parole after 3.5 years.

77. The sentence shall be taken to have commenced on 9 February 2024, which is the date since the Offender has been in custody for this matter.

78. I also will make a recommendation to the Parole Board as to the necessity, in my view, that any condition of his parole be a proper referral, with all relevant medical records, including these reasons, to Community Mental Health Services for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities if possible, for him to become and remain drug-free.

Orders

79. For those reasons, my orders are:

80. For Sequence 6, taking into account the Form 1 matter and after a 25% discount for the early plea of guilty, the Offender is sentenced to a term of imprisonment of 6 years and 6 months commencing 9 February 2024 and expiring 8 August 2030.

81. The non-parole period is 3 years and 6 months commencing 9 February 2024, which expires on 8 August 2027, which is the date that the Offender will become eligible to be released on parole.

82. Direct the Crown to send the Parole Board a letter providing a copy of these reasons, emphasising that the Court recommends that a condition of the Offender’s parole be a proper referral, with all relevant medical records, including these reasons, to Community Mental Health Services for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities if possible, for him to become drug-free.

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Amendments

27 September 2025

Photo of complainant removed.

26 March 2026

Title amended