The offender pleaded guilty in the Local Court and adhered to that plea before me to a charge of causing grievous bodily harm to Nicolas Davis with intent to cause grievous bodily harm, on 17 November 2017. That is an offence under s 33(1)(b) of the Crimes Act. It has a maximum penalty of 25 years' imprisonment, and there is an applicable standard non‑parole period of seven years.
[2]
Facts
The facts are agreed, and the following is taken from the agreed facts. The facts indicate that the offender is known to the complainant and a witness to the incident through mutual acquaintances.
At about 4.55am on Friday 17 November 2017, the victim and the witness referred to in the facts, walked across the concourse at Kingswood Train Station to cross to the southern side of the rail corridor in the direction of the hospital. As the victim and the witness walked down the stairwell on the southern side of the station, they noticed the offender standing at the bottom of the stairs. The victim and the witness continued walking down the stairs.
As the two reached the bottom of the stairs, the offender walked over to the victim and starting yelling at him whilst brandishing a piece of wood approximately 10 centimetres wide and 120 centimetres long. The offender struck the victim to the left side of his head, at the base of his neck and skull with the plank of wood. This caused the victim to fall on the ground. Whilst on the ground, the offender kicked the victim. The victim suffered a brief moment of unconsciousness before the witness helped him up from the ground and assisted him to walk away as he was unsteady on his feet and unable to balance.
The offender remained at the train station, and a number of commuters contacted police. Police attended the train station and spoke to the offender. He provided his full name. Police observed a piece of wood hidden behind a nearby pole, which appeared to be taken off a bed frame and asked the offender if he was walking around with a piece of wood in his hands. He replied, "Yeah. I was just mucking around with it hitting rocks". Police were unaware of the assault at that time and issued the offender with a move on direction and seized the piece of wood.
The victim returned home and slept for a short time. When he woke, he informed, he says, his case worker, of the assault and was taken to the Nepean Medical Centre for treatment. He disclosed what had occurred to the treating doctor, and was referred for a CT scan, which showed that he had a fractured skull and haematoma. He was sent to the emergency department at Nepean Hospital. Staff at the medical centre contacted police about what had occurred.
The victim was admitted to Nepean Hospital for observation by a neurosurgeon. He was found to have an undisplaced occipital bone fracture and an approximate 4 millimetre thick posterior fossa subdural haematoma and a scalp haematoma. A CT scan was performed the following day to assess the intracranial injuries, and a small extra‑axial haematoma near the left temple pole was noted. He failed a posttraumatic amnesia test, and was kept in hospital for observation and treatment for eight days before being discharged with a plan to follow up with the Westmead Brain Injury Unit.
Police attended Kingswood Railway Station and obtained the CCTV footage. I have viewed that footage which was tendered before me. The footage depicts the offender in possession of the piece of wood at the train station before and after the incident. It actually shows in part the incident involving the victim. He is seen approaching the victim and witness as they get to the bottom of the stairs and almost immediately striking the victim with the wood to the head, and the victim is seen to fall to the ground while the offender kicks him.
The offender was arrested on 25 November 2017. He took part in an interview with the police. He told them he could not remember the incident, and that he was using drugs daily and had a bad Xanax habit at the time.
[3]
Assessment of the objective seriousness of the offence
I turn then to my assessment of the objective seriousness of the offence. The offence was an unplanned, unprovoked and random attack with a weapon, being a piece of wood, upon a defenceless victim. The victim was struck to the head, a particularly vulnerable part of the body, and there was a kicking of the victim while on the ground. While the facts suggests that the victim knew of the offender, there is no suggestion that there had been any prior altercation between them. The injuries suffered by the victim were significant, as he was hospitalised for eight days, suffered a fractured skull, and a small extra‑axial haematoma near the left temporal pole, which I understand to be bleeding within the skull outside of the brain as such.
There is a victim impact statement before me. It details that the victim has had numerous appointments with the brain injury clinic since his release from hospital, and the significant impact the offence has had upon him. He has not been able to return to work, and the offence has affected him in his overall state of anxiety and depression.
The level of violence, the use of a weapon, the unprovoked nature of the offence and the level of injury, in my opinion, leads to a conclusion that the offence falls within the midrange level of objective seriousness.
The Crown submitted that the use of a weapon was an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act. I consider that submission as being made good, and I had regard to the use of the weapon in my assessment of the objective seriousness of the offence.
[4]
Offender's subjective case
I turn then to the offender's subjective case. He has just turned 29 years of age.
The offender has a significant criminal history, and, in particular, a history of violent offending. It commenced as a juvenile when he was 15 years of age. He received a number of control orders when a juvenile.
As an adult, the offender has received custodial sentences for inflicting grievous bodily harm with intent to do so, the same type of offence that I am to sentence him for: assault occasioning actual bodily harm; armed robbery; damage property by fire; and other offences. As at the time of the current offence, he was on parole for armed robbery, which is an aggravating factor.
His criminal record disentitles him to leniency here. The Crown submitted that it was an aggravating factor pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act and with the principles discussed in Veen (No 2) (1988) 164 CLR 465 and R v McNaughton (2006) 66 NSWLR 566. I am of the opinion, given the extensive nature of the offender's record, that submission is made good. However, it is important to note that the offender's prior criminal record cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.
The offender has spent very little time out of custody since 16 December 2006 when he was 16 years of age. The longest continuous period appears to be a little over three months. In total during the period since 16 November 2006, he has spent a little over 12 months at liberty.
I have been provided with a Sentencing Assessment Report dated 6 February 2019, and a report of a forensic psychologist, Ms Anne Lucas, dated 30 November 2018. The offender also gave evidence before me confirming the information in the reports, and also supplementing them to some degree. From those reports and the offender's evidence, I note the following: in terms of his family background, regrettably the offender has had a deprived one. He is an Aboriginal man of 29 years of age. He advised the psychologist that both his parents had been addicted to heroin, and that he has been advised on a previous occasion that he was born heroin addicted and required neonatal care as a result. The offender was placed in foster care between the ages of three and seven, when both of his parents were separately incarcerated. He advised the psychologist that he has limited recall of that period of his life.
The offender was returned to the care of his father at the age of seven. He reported to the psychologist that he has had no meaningful relationship with his mother since he was placed in foster care, although he told the author of the Sentence Assessment Report that he still has the support of his mother.
The offender reported that his father had significant criminal connections, and recalled meeting many of his father's criminal associates. The author of the psychological report stated that Mr Hinton developed in his childhood to the age of ten years a moral code which relied substantially on survival predicated on criminal activity.
The psychologist reports that the offender spent considerable time in juvenile detention facilities between the ages of ten and 16, and this is, of course, confirmed by his criminal and custodial record. The offender was transferred to the Kariong Facility at 16 years of age and remained there until he was 21. The offender gave evidence that he was a member of an outlaw motorcycle gang since the age of 17, but that he no longer has any association or contact with the gang concerned.
In terms of his education and employment history, he was expelled from school, having had minimal attendance at a behavioural high school. He completed his year 10 school certificate in custody. He was unemployed prior to his most recent entry into custody, with his most recent form of employment being in 2016 for a period of two months. Given the limited time he has spent in the community, he essentially has little to no vocational experience or training.
In terms of his illicit substance use, he has a substantial substance abuse history. Ms Lucas' report suggests that much of his offending has been a consequence of or related to drug abuse factors. He first began using cannabis at the age of 11 or 12. He used methamphetamines as a teenager. Between the age of 12 and 16, he experienced significant abuse of alcohol. He began using heroin at the age of 18 whilst in custody. The offender reported that he was "high" on drugs at the time of the offence.
The Sentence Assessment Report reports that the offender has participated in drug and alcohol services within custody and the community, and that whilst he was not interested in addressing his substance abuse issues at the time of the offending, the offender says he is now willing to engage with drug and alcohol programs and services in custody and in the community. The offender told the author of the Sentence Assessment Report he would consider being released to a residential rehabilitation facility. The offender has been on and off the methadone opioid replacement program. Currently, as I understand it, he is not on the program.
In terms of his psychological and psychiatric history, Ms Lucas in her report draws attention to the offender's significant history of neglect and abuse. Ms Lucas states:
"In respect to the relationship between his parents' drug addictions and Mr Hinton's own problems with chronic substance abuse, it should be noted that addiction is a complex, chronic psychological disorder with a high relapse rate."
Ms Lucas notes the coupling of these problems of exposure to criminal activity from a young age, and the offender's current adherence to a "crim's code", which Ms Lucas says guides a fair amount of his decision making. Ms Lucas says further that long periods of time spent in custody have consolidated the offender's views as to criminality and has resulted in the offender showing signs of psychosocial functioning deficits associated with institutionalisation when he is released into the community.
The offender undertook cognitive testing, which placed his IQ as most likely falling within the low/average to average range. In giving evidence before me, the offender demonstrated, in my view, considerable intelligence and a degree of articulateness that was somewhat surprising, given his limited education and deprived background.
In terms of his attitude to the offence, the Sentencing Assessment Report states that the offender feels remorse and empathy for his actions. He stated to the author of the Sentence Assessment Report that the victim did not deserve what happened to him, and acknowledged that his actions could have killed the victim.
The psychologist, Ms Lucas, notes that in discussing his offending with her, the offender expressed remorse for the victim saying, "I didn't know him. He probably didn't do anything wrong. He just seemed to be somebody going about his business that I attacked. I feel sorry for him". Ms Lucas states that the offender was able to identify that beyond the physical injuries inflicted, there would have been psychological consequences for the victim as a result of the assault.
When giving evidence before me, the offender also repeated his remorse, and I found it to be genuine. In terms of plans for the future and the risk of reoffending, the Sentence Assessment Report reports that the offender stated that he has "had enough of this life", and has wasted the majority of his life in custody, and that he acknowledged that he had the potential to kill someone.
The offender stated to the author of the Sentence Assessment Report that he would be willing to engage in relevant programs and services. He was assessed as having a high risk of reoffending, both in the sentence assessment report and in the psychological report. Ms Lucas, unsurprisingly, reports that given the complex and chronic criminogenic needs displayed by the offender, his rehabilitation will be prolonged and will require intensive supervision and input.
[5]
Determination
I mentioned earlier the offender gave evidence before me. He gave evidence in a matter of fact, straightforward manner. Some of his evidence did not necessarily assist him. In particular, when he described his use of illicit substances and his violent past. I consider, though, that he was essentially endeavouring to give truthful evidence about his life to date, his drug use and associated violence. I accept his evidence generally.
I mentioned earlier there was an early plea of guilty, and I will allow him a 25% discount of his sentence for the utilitarian value of the plea of guilty.
Having regard to the offender's evidence and his early plea of guilty, together with his comments made to the report writers, I consider that he is genuinely remorseful for the offence.
Given his criminal history and his risk of reoffending being assessed as high, I consider he has poor prospects for rehabilitation.
Given the time he has spent in custody, and comments made in both the Sentence Assessment Report and the psychological report, I do not doubt that the offender is institutionalised. In that regard, I note his evidence that when he said that he felt lost when not in gaol, and that he felt comfortable when inside prison walls. I also consider that clearly when next released into the community, he will need a period of prolonged intensive supervision if he is to have any chance of remaining drug and offence free. For those reasons, I have made a finding of special circumstances when fixing the non‑parole period.
Clearly the offender has had a very deprived early life. I have, therefore, had regard to the principles discussed in Bugmy v The Queen (2013) 249 CLR 571 in relation to the relevance of social disadvantage to sentencing. In my opinion, this offender was never provided with the skills necessary by his parents to live a law‑abiding life, being exposed to violence, drugs and criminality at a young age. There is a reduction in his moral culpability, it seems to me, given his background.
The fact that the offence was, on the evidence. committed while the offender was under the influence of prohibited drugs is generally not a mitigating factor; however, where an offender was exposed in his early life to prohibited drugs by adults, and as a consequence formed an addiction, some allowance can be made for the fact that that was how an offender's addiction commenced in mitigating the sentence. In particular, where there has been some advance towards rehabilitation. See the discussion by Simpson J, as her Honour then was, in R v Henry (1999) 46 NSWLR 346, and in Hayek v R [2016] NSWCCA 126 by Wilson J, with whom the other members of the Court of Criminal Appeal agreed.
Here I have taken into account the deprived background of the offender when fixing sentence, and that includes his early exposure to illicit substances by adults. He has, however, in the past had a number of opportunities to address his drug addiction, but is yet to be successful in that regard.
He is currently serving the balance of parole in relation to the armed robbery sentence I referred to earlier. That period is the period 25 November 2017 to 26 May 2019. I propose to commence the sentence from 26 May 2018 to reflect the principles of totality.
I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.
Random acts of violence like the offence here must result in very significant sentences to deter the offender concerned and others from engaging in such conduct. Members of the public must feel free to go about their lives without the fear of becoming the target of random acts of serious violence like the conduct here. General deterrence must be reflected in the sentence I impose.
Given the offender's history of violence, personal deterrence must also be reflected in the sentence.
The maximum penalty and standard non‑parole period have been taken into account as legislative guide posts as explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120. It will be seen that I have departed from the standard non‑parole period due to the plea of guilty and my finding of special circumstances.
Mr Hinton, you are convicted of the offence to which you have pleaded guilty. You are sentenced to a term of imprisonment consisting of a non‑parole period of five years, and a balance of term of two and a half years. That is a total sentence of seven and a half years' imprisonment. It dates from 26 May 2018 and expires on 25 November 2025. The non‑parole period expires on 25 May 2023. The earliest date you may be released to parole is the date of the expiry of the non‑parole period, which is 25 May 2023. Whether you are, in fact, released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released that day or on another date.
[6]
Orders
Convicted.
Sentenced to a term of imprisonment of seven and a half years' imprisonment commencing on 26 May 2018 and expiring on 25 November 2025, with a non-parole period of five years expiring on 25 May 2023.
[7]
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Decision last updated: 06 August 2019