R v MULQUEENEY, Brody Paul Stuart

District Court of NSW|2018-03-02

REMARKS ON SENTENCE

On 24 May 2017 the offender was committed for trial from the Local Court at Wagga Wagga in respect of one count of Cause Grievous Bodily Harm with Intent to Cause Grievous Bodily Harm contrary to s 33(1)(b) of the Crimes Act, 1900 and one count of Do Act with the Intent to Pervert the Course of Justice, contrary to s 319 of the Crimes Act.
On 11 August 2017 the offender appeared at the Wagga Wagga District Court and pleaded guilty to one count on an indictment, namely that he "on 28 August 2016 at Lockhart in the State of New South Wales caused grievous bodily harm to [JH] with intent to cause grievous bodily harm", contrary to s 33(1)(b) of the Crimes Act. The charge of Do Act with Intent to Pervert the Course of Justice, which for the sake of convenience I will refer to as the public justice offence, was placed on a Form 1 document.
The value of the discount for the utilitarian value of the plea was one of the issues that arose at the sentence hearing. The Crown maintained that the appropriate discount was 10%. Mr King, counsel for the offender, maintained, without actually submitting a mathematical figure, that the plea was worth more than 10%. I agree with Mr King. The plea was forthcoming within three months after committal. According to the Court file the matter had been to a telephone call-over and listed for arraignment rather than for trial. The plea of guilty was entered at arraignment. In these circumstances, taking into account the decision of R v Borkowski [2009] NSWCCA 102 at [32], at the risk of erring on the side of generosity, I am prepared to allow 20% discount for the utilitarian value of the plea.

Facts

The facts are before the Court by way of Agreed Facts, which are at Tab 2 of the Crown Tender Bundle, Exhibit A on sentence. The offender was 20 years of age at the time of the offending and the victim was 14. At the time both lived in Lockhart, a small town approximately 65 kilometres to the south-west of Wagga Wagga.
On 28 August 2016 the victim and offender were at the offender's home where during the afternoon a fire was lit in a homemade fire bucket. [JB] and [VB] (both females) arrived at the home at about 4.30pm. All four sat around the fire bucket in the back yard. The offender went to the back shed and returned with a bottle of paint thinners. He then threw some of the paint thinners on the fire causing the fire to flare up.
The victim was wearing a flannelette shirt that was buttoned up and long pants. He was standing in front of a chair. The offender walked over to the jerry can containing the paint thinners, picked it up, walked over to the victim's left side and began swinging the jerry can around causing some of the paint thinners to go over the victim. The victim turned his left shoulder away from the offender so that more of his back was facing the offender. The offender laughed as he tipped thinners on to the victim. The victim said, "What the fuck are you doing, cunt?" He ducked and the offender said, "Just mucking around cunt". The victim said, "What the fuck" and "You're being stupid now, you're just showing off, stop".
The offender took a cigarette lighter from his pocket and flicked the lighter causing it to spark. The victim was about 1.5 metres from the offender when this occurred. The offender at about this time said, "What would happen if I set you on fire?" to which the victim said, "Don't you, cunt". The victim started running around the back yard and the offender was chasing him. Both had smiles on their faces. [VB] told them both to, "Stop being dickheads".
The victim tripped and fell to the ground. The offender wrestled with the victim on the ground. The victim attempted to free himself. The offender sat on the victim and held the victim in a head/arm lock. The offender lit the cigarette lighter near the victim's back causing the victim to become alight.
The victim stood up whilst he was on fire and tried to hit the offender and screamed, "You're a fuckin' dickhead". The victim dropped to the ground and tried to roll around. The offender watched the victim try to extinguish the fire and said, "I'm sorry cunt, sorry". [JB] told the offender to get a hose, which he did and hosed the victim extinguishing the flames. The offender removed the victim's flannelette shirt and track pants.
[JB], [VB] and the victim all told the offender to call an ambulance. He said, "No, because then I'll just go to gaol again". The offender was on parole at the time of the commission of the offence.
[JB] took the victim to Lockhart Hospital. While the victim was walking towards [JB'S] vehicle the offender said, "So, what's the story so your parents don't call the cops on us". The offender said to [VB], "This is not to be said to anyone". The victim was transferred to the Base Hospital in Wagga Wagga and then transferred by air to Westmead Children's Hospital.
[JB] and [VB] drove back to Wagga Wagga. While en route the offender rang [VB] and said, "The story is [JH] was tipping thinners on the fire and that's how he got alight". [VB] agreed. The offender again rang [VB] and said, "Make sure you don't say anything to anyone, if the cops find out I'll get in so much trouble, I'll go back if they ever find out I did this." [VB] agreed not to disclose what had occurred.
Initially the victim did not complain about the offender setting fire to him. He stated that he accidentally set himself on fire while using paint thinners. However on 26 September 2016 the victim told his mother that the offender set him on fire after throwing paint thinners over him. Police were contacted.
The offender sent a message to [VB] which read, "OK, you were standing next to the fire, Brody came over with a bottle of thinners and tipped it on you and you said WTF…he didn't say nothing then he pulled out his lighter and was flicking it at you and then you started running around and you tripped over and he got you and lit you on fire with his light. Then while you were burning he just stood there. I said, 'Brody go get the hose, quick' and he did and then that's all…yeah he did, he had you in an arm lock, sort of thing…"
On 28 September 2016 [VB] received another message from the offender telling her to "stick to the story". Later that day the offender spoke to [JB] and said to her words to the effect that, "My nan is going to say that I was in the house. Can you say that too?"
Also on 28 September the offender sent [JB] a text message which read, "We were wrestling on the ground lol then we got up then he poured fuel into the fire and that's when it came up." He sent a message to [VB] which read, "I heard he inboxed you just say what [JB] said that he poured fuel into the fire".
The actions of the offender in attempting to establishing the false account, including encouraging [JB] and [VB] to assist in that false story being maintained go to the public justice offence. The actions were not isolated and occurred over a period of time and involve other persons.
So far as the injuries sustained by the offender are concerned the facts recite that the victim suffered burns to 35% of his body surface including his right hand and arm, right axilla, chest, abdomen, right hip, right thigh and back. Six different surgical procedures were undertaken under general anaesthesia. Three of these were for dressing changes and one procedure was to remove non-viable tissue and dressing and two were to remove non-viable tissue and skin grafting. Donor skin was taken from both the victim's legs and right forearm and used to graft onto his burn wounds. Following his release from hospital the victim was seen twice weekly in the Burns and Plastics Treatment Centre for review of the wounds and scar management. At tab 8 of Exhibit A on sentence is a series of photographs. Photographs 1 - 9 were taken at the Wagga Wagga Hospital. Photographs 10-18 were taken after transfer to the Westmead Children's Hospital and photographs 19-24 were taken over a month and show dressing changes and treatment for the burns.
Mr King submitted that the colour saturation of the photographs may not be entirely accurate. While there may be some substance in that submission, the photographs nevertheless graphically demonstrate the extent of the burn injuries and the horrific nature of those injuries suffered by the victim.
The material in the facts relating to the injuries sustained by the victim is supported by a report by Dr Erik La Hei, Paediatric Surgeon at the Westmead Children's Hospital, which is at tab 6 of Exhibit A on sentence. The last paragraph of that report reads: "After discharge from the Children's Hospital Westmead, [JH] has been seen twice weekly in the Burns and Plastics Treatment Centre outpatient clinic for review of his wounds and scar management. It is anticipated that he will require on-going review with the specialist burns unit nurses and physiotherapists to monitor his wound healing, symptom control and scar formation. He is still requiring narcotic analgesia to manage his pain as well as special medications to manage itch. He wears special pressure garments to control scarring. Concerns regarding long-term effects of his burn injury include the potential for hypertrophic scars that may impair movement and function of his right arm, right leg, and torso as well as the potential for on-going pain and itch requiring medication. There is also concern regarding the potential psychological and social impact that his burn injury and subsequent hospitalisation may have caused."
This is the extent of the material available as to the longer-lasting effects of the injuries sustained by the victim. The very experienced and able Crown Prosecutor informed the court at the sentence hearing that there was no other material available, but that was not for the want of trying.
In the circumstances I am certainly able to find beyond reasonable doubt that the victim would suffer permanent scaring; as much was conceded by counsel for the offender. However, I am not able to make any finding as to the extent of that scaring. Beyond the fact that the victim will suffer permanent scarring and the material contained in the report of Dr La Hei, I am quite unable to make any further findings beyond reasonable doubt as to the extent of any ongoing issues or sequelae suffered by the victim. I observe that had I been able to make findings beyond reasonable doubt above and beyond those that I am able to make on the available material the matter would have been more objectively serious with the consequence of a sentence more severe than the one that will ultimately be imposed.

Assessment

This conveniently leads to the assessment of the objective seriousness of the matter, noting that the offence carries a standard non-parole period. The Crown submitted that the matter was above mid-range. Mr King submitted on behalf of the offender that the court would find that the offending was in the mid-range.
The offending involved the deliberate throwing of paint thinners on the clothing of the victim. I accept that initially this was done as a joke in a light-hearted manner. There was then the chasing around the yard, which likewise was light-hearted. The matter became very serious however when the offender sat on the victim and held him in a what the facts describe as a head/arm lock, essentially preventing him from being able to get up and get away from the danger. The cigarette lighter was lit near the victim's back igniting the clothing over which had been poured a volatile accelerant. The injuries were serious and have been set out in some detail when dealing with the facts. Those injuries will result in permanent scarring. It is clear enough from the report of Dr La Hei that the victim had some ongoing difficulties and issues. Although the offender extinguished the flames it was only after he was told to do so by one of the onlookers. The offender refused to call an ambulance.
Mr King on behalf of the offender submitted, correctly, that there was no animosity between the victim and the offender, that the incident was not planned, it was not sustained, it was not a ferocious attack and it was not motivated by anything. Further, Mr King submitted that the actions of the offender indicate recklessness to an extraordinarily high degree. Ultimately this led to a submission that so far as the element of intention to cause grievous bodily harm is concerned it is towards the lower end of the scale. Mr King contrasted what were described as more serious examples of offences contrary to s 33 of the Crimes Act that involved ferocious and sustained attacks.
Matters of violence are generally result offences, i.e. the more serious the injury the generally more objectively serious the matter will be.
In Mitchell & Gallagher v The Queen (2007) 177 A Crim R 94 Howie J at [27] said: "The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence".
A little later in McCullough v R [2009] NSWCCA 94 Howie J (McClellan CJ at CL, Simpson J - as her Honour then was - agreeing) at [37]: "Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wound are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell & Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]."
Early in the sentence hearing I indicated a preliminary view that the matter was moderately above mid-range. Having heard the submissions and having given the matter much further consideration I remain of the opinion that given the nature of the infliction of the injuries, the nature of the injuries and the permanent scarring that the matter is above the mid-range of objective seriousness, but not to the extent of my initial preliminary view. As I have already set out, the position would be different had I been able to make findings beyond reasonable doubt above and beyond what I have been able to do so far as ongoing sequelae are concerned.
Counsel for the offender appropriately acknowledged that the matter on the Form 1 document involved serious conduct and would need to have a meaningful impact on the sentence to be imposed. The offender prevailed on a number of people, who were younger than him, to persist with a false version in an attempt to avoid liability for his serious and criminal actions. Mr King took me to paragraph [42] of the judgment of Spigelman CJ in the Guideline Judgement on Form 1 matters. The court in dealing with the Form 1 matter gives greater weight to personal deterrence and retribution.

Aggravating Factors

At the beginning of the sentence hearing the Crown submitted that a number of statutory factors of aggravation pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act, 1999 were present. These were: 1. Use of a weapon - s 21A(2)(c) 2. Use of chemical or explosive - s 21A(2)(ca) 3. The criminal history of the offender - s 21A(2)(d) 4. The injury sustained was substantial - s 21A(2)(g); and 5. The offender was on conditional liberty - s 21A(2)(j).
The last matter is the least controversial. The offender was on parole for the offence of Sexual Intercourse with a Person between 14 and 16 years and was also subject to a s 9 good behaviour bond for Break and Enter with Intent to Commit a Serious Indictable Offence at the time of the commission of the offence.
The Crown submitted that the court would deal with the issues of use of a weapon and the use of an explosive as the one matter. So far as the use of a weapon is concerned technically the Crown's submission is made good, following the decision of Nowak v R [2008] NSWCCA 89 at [15]-[17]. Likewise, an explosive was used. However, the use of the paint thinner and setting the victim on fire has already been taken into account in determining the objective seriousness of the matter. While the Crown's submission is made good on this aspect for it to have an impact on sentenceas a factor of statutory aggravation would be to "double count". It is perhaps timely to remember what was said by Howie J in R v Elyard [2006] NSWCCA 43 at [39]: "It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands".
I will deal with the issue of the criminal history under a separate heading. I turn now to the submission relating to the injury being substantial. Before I called on Mr King, the Crown put that the harm sustained by the victim was substantial in the sense that the aggravating circumstance pursuant to s 21A(2)(g) was made out. That position was maintained in later submissions. The authority of Betts v R [2015] NSWCCA 39, and in particular the judgment of RS Hulme AJ (Meagher JA, Hidden J agreeing) at [24]-[27] appears to be authority for the proposition that the statutory factor of aggravation of substantial physical harm can be made out if the injuries "greatly exceed" what is contemplated by the section.
In the matter presently under consideration I am very firmly of the opinion that despite the obvious seriousness of the injuries sustained by the victim those injuries do not greatly exceed what is contemplated by the section. I reject the Crown's submission as to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

Criminal History

The Crown initially submitted that the criminal history of the offender was an aggravating factor but that submission was later abandoned. However, as it was raised and as there was some time devoted to this issue, I will deal with it.
The offender was born on 23 April 1996 and accordingly was 20 at the time of offending and is now 21, soon to be 22. The matters on his record are those for which he was on conditional liberty at the time of the offending. In July 2016 he was sentenced to a total of 10 months imprisonment for Sexual Intercourse With a Person between 14 and 16 years, and in April of 2016 after a successful appeal to the District Court was released on a section 9 bond for Break Enter with Intent to Steal. The only other matter is one of Intentionally Mark Premises, which was dealt with pursuant to s 10A of the Crimes (Criminal Procedure) Act.
The record is limited, but noting the nature of the offences the record is one that does not entitle the offender to any particular leniency. However, the record is most certainly not one that can be dealt with as a matter of aggravation. In order for s 21A(2)(d) to be enlivened the record must be such as to enliven the principles enunciated by the High Court of Australia in Veen v The Queen (No. 2) (1988) 164 CLR 465. The commentary to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act in the Butterworth's Practice (p 98,401) reads, "The fact that the offender has a record of prior convictions is not itself an aggravating feature under this section. It is only an aggravating feature where the record gives rise to the consideration in Veen v The Queen (No. 2) (1988) 164 CLR 465 that was described in R v Shankley [2003] NSWCCA 253".
In Veen v The Queen (No. 2) Mason CJ, Brennan J (as his Honour then was), Dawson & Toohey JJ said at 477-8: "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."
Veen v The Queen (No 2) was decided well before the insertion of s 21A(2) into the Crimes (Sentencing Procedure) Act 1999. The respondent to the Crown appeal in Shankley was subject to a number of orders of conditional liberty at the time of the commission of the offences that brought him before the District Court at first instance. On the issue of the record being an aggravating factor see also the decision of McNaughton v R (2006) 66 NSWLR 566.

Victim Impact Statement

I have no note or memory of either party addressing the issue of the Victim Impact Statement, which is at tab 5 of the Crown tender bundle, exhibit A on sentence. That statement speaks eloquently of the injuries sustained by the victim which have already been fully set out when dealing with the facts and the objective seriousness of the matter. Little detail is given of the ongoing issues relating to the injuries beyond what is contained within the report of Dr La Hei. As I have already set out, there is no more up to date medical material relating to the ongoing sequelae. There is no material from treating professionals relating to any psychological or psychiatric effects on the victim. In these circumstances, noting the decision of the Court of Criminal Appeal in Tuala [2015] NSWCCA 8, the contents of the Victim Impact Statement cannot have any impact on the sentence that is to be imposed in this matter.

Subjective Case

No oral evidence was given or called on behalf of the offender. However, written material contained in the Defence Tender Bundle, Exhibit 1 on sentence, was received into evidence without objection.
At Tab 2 of Exhibit 1 on sentence is an affidavit sworn by the offender. Although the court made no specific inquiry of the Crown, the very able and very experienced Crown Prosecutor did not indicate that the Crown required the offender for cross-examination. In these circumstances, there is no reason not to accept the contents of that affidavit.
At paragraph 3 of his affidavit the offender says that he regrets everything he did to the victim and that he has thought about the pressure under which he put the two girls. At paragraph 4 he says that he is disappointed in himself and wishes he could take everything back. He remembers seeing the victim in pain in the hospital. At paragraph 5 he accepts that one stupid act ruined everything for [JH] (victim) and his family. At paragraph 10 he says that he feels sorry for the physical and emotional pain he caused the victim; that he is truly sorry for his actions and he apologises to the victim's family.
Ordinarily such written expressions of remorse are worth very little. However as I have made plain, the offender was not required for cross-examination. There is also the expression of remorse as set out in Dr Furst's report (tab 1, Exhibit 1) at p 3 under the heading, "Offence Related Issues" and further at the top of p 4 under the heading "Recent Progress". In the circumstances, I am satisfied on balance that the offender is remorseful.
The offender in his affidavit at paragraph 6 and continuing sets out steps taken towards rehabilitation. He has completed a Positive Lifestyles Course in which he has learned how to more effectively deal with stress. He has got to know an older inmate, Darren Edwards, who it would seem has been something of a mentor to the offender. Since completing the course the offender has become more aware of the drug and anger management issues he was suffering. He is continuing to see a counsellor in relation to his substance abuse issues - see paragraph 13 of the affidavit.
The offender's grandmother regularly visits the offender in gaol - see paragraph 14 of the affidavit. The offender had supporting him in court a considerable number of family members. Clearly, he enjoys considerable family support, which can only be of benefit for the offender in his long term rehabilitation. According to paragraph 15 of the affidavit he works in custody as a sweeper. He is now medicated with anti-depressants, which have assisted with coping with nightmares.
Dr Furst (see p 4 of his report) gives a history of the offender saying that he wants to discover a different side of himself and that he wanted to change his life when he gets out.
On the issue of rehabilitation I maintain the position I indicated at the sentence hearing. I am not prepared to find on balance that there are good prospects of rehabilitation simply because it is simply too early to tell. However, there are some really positive signs. If the offender remains abstinent from illicit substances and continues the course of counselling then there is no reason to assume that he will not rehabilitate.
Given the matters on the offender's record and that the offence for which he appears for sentence was committed while he was subject to conditional liberty, I am not prepared to find on balance that the offender is unlikely to re-offend. I did not understand counsel for the offender to make any contrary submission.
Dr Furst opines (p 2) that there were no indications that the offender suffers from a major psychiatric problem such as schizophrenia or bipolar disorder. Dr Furst sets out a history (p 3) that the offender commenced smoking cannabis and methamphetamine (ice) from the age of 17. He used methyl amphetamine in amounts of .3 gram per day, which usage increased after he broke up with his partner.
At the bottom of p 4 of his report Dr Furst opines that the offender meets the criteria for the diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), Substance Abuse Disorder and Adjustment Disorder with Depressed Mood.
At p 6 of the report under the heading "Psychiatric and Psychological Mitigating Factors" the following appears: "A review of the available history suggests that his actions were impulsive and there was no rational reason for harming his friend. Intoxication with methyl-amphetamine is also likely to have clouded his judgment and made Mr Mulqueeney more disinhibited and/or aggressive. There were no indications that he was unaware of his actions of (but I read or) their wrongfulness. His underlying ADHD, which was not being actively treated at the time in August 2016 is associated with the later onset of drug addiction. Impulsivity and cognitive impairments are also features of ADHD. In my opinion, the apparent impairment of his judgement, cognitive impairment and impulsivity related to his ADHD and addiction vulnerability, and the additional direct effects of his use of methyl-amphetamine on his mood and judgment at the time of the offence probability mitigates to some degree against the seriousness of his actions, especially as addiction is being increasingly recognised as a neurobiological disorder rather than just a moral choice".
Mr King, counsel for the offender, submitted that given the diagnosis reached by Dr Furst, taken with the opinion as set out above, the principles enunciated by the Court of Criminal Appeal in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened, reducing the moral culpability of the offender and further having the effect of reducing the effect of general deterrence in the sentencing process.
Implicit in the submission by counsel for the offender is that there is a causal connection between the mental condition suffered by the offender and the offending. However, as I understood the submissions, Mr King made a secondary submission to the effect that even if I was not prepared to accede to his primary submission then the material relating to the offender's mental condition is part of the subjective mix.
The High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 212 A Crim R 254 at [54] said: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, inmost cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community".
In Aslan [2014] NSWCCA 114 Simpson J (as her Honour then was) in giving the judgment of the court at [33] and [34] said: "This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: '[Principle 1]: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2]: It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3]: It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4]: It may reduce or eliminate the significance of specific deterrence ... [Principle 5]: Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted, italics added)' [34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."
Beech-Jones J in giving the leading judgment in Ngati [2014] NSWCCA 125 at [46] said: "Nevertheless the approach stated in Muldrock is only expressed to be apposite to 'most cases' of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the application was "fully aware" that his conduct was "seriously wrong". Considered in this context the finding that he was "fully aware" was clearly a reference to the applicant having a deep understanding of its wrongful nature and consequences"
The offender was intoxicated by methyl amphetamine (ice) at the time of the offending. Dr Furst at p 6 of his report opines that this was likely to cloud the offender's judgment. At p 2 Dr Furst sets out that the offender gave a history of using large amounts of ice at the time of the offending and had used 2 grams of ice on the day of the offence. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act provides that self-induced intoxication cannot be a matter in mitigation. Before the enactment of that section the principle as stated by the Court of Criminal Appeal in Bourke v R [2010] NSWCCA 22 was that generally self-induced intoxication could not be a matter in mitigation.
In the matter presently under consideration the offender was intoxicated. Further there was the deliberate conduct in which he engaged immediately after the offence to which the public justice offence on the Form 1 relates. In these circumstances I will deal with the mental health issues of the offender as part of the subjective mix. Be that as it may, those mental health issues are an important part of the subjective mix. They also certainly form part of the justification for a finding of special circumstances. The offender will need a longer period of supervision to ensure that he receives and undertakes the appropriate treatment in respect of those issues.
The offender was 20 years of age at the time. Mr King submitted, correctly in my view, that the offender is also immature. He was socialising with people younger than himself on the day of the offence. On this issue Mr King submitted that the nature of the sexual offence (having sexual intercourse with a person between 14 and 16) demonstrates that the offender gravitates towards younger people. In the Pre-Sentence Report at Tab 6 of the Papers relating to the Breach of the s 9 Bond the author recounts that the offender's grandmother described the offender as a "follower".
The offender is certainly entitled to have his youth taken into account in the determination of the appropriate sentence. RA Hulme J reviewed a number of authorities on the issue of youth in Locke v The Queen (2010) 207 A Crim R 34; [2010] NSWCCA 296 at [41]-[49]. His Honour concluded (Simpson & Hoeben JJ as their Honours then were, agreeing) at 49: "In my view the youthfulness of the applicant was relevant to the setting of not only the non-parole periods but also the overall terms of the sentences…"
One of the authorities reviewed by his Honour was Hearne v R (2001) 123 A Crim R 451, where at [25] the Court (Powell JA, Hulme & Dowd JJ) said: "…It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Were that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years…"
While I accept that the offender was immature and that immaturity undoubtedly played a part in the offending, there is really nothing in the material before me on which I could base a finding that immaturity was a "significant contributing factor". There is again the issue of the intoxication. Be that as it may, the youth of the offender remains an important part of the subjective case. Mr King appropriately submitted that the issue of youth does not have the same force so far as the public justice offence on the form 1 document is concerned.
On the issue of youth I note also the decision of JM v The Queen (2012) 223 A Crim R 55; [2012] NSWCCA 83 at [104]-[110] per Simpson J (as her Honour then was).
Mr King provided as part of the Defence Tender Bundle, exhibit 1 on sentence, the statistics kept by the Judicial Commission in respect of offences contrary to s 33(1)(b) of the Crimes Act. Further, Mr King provides an analysis of those statistics, which is at Tab 4 of Exhibit 1. Approximately 71% of offenders received a total sentence of 7 years or less, with 65% of offenders receiving a non-parole period of 4 years or less. I have read and considered those statistics in detail. However, I warn myself about the use of those statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45; Uriolla v R [2012] NSWCCA 95, Brown v R [2014] NSWCCA 215 and more recently the observations of Bathurst CJ in SS v R [2016] NSWCCA 197. It is perhaps timely to recall what Garling J said in Brown at [80]-[81], namely: "It is important to note that the High Court has said in many cases that the consistency in sentencing which is sought from intermediate appellate courts, is not numerical equivalence but rather consistency in the application of relevant legal principle: Hili v The Queen; Jones v The Queen [2010 HCA 45; 242 CLR 520 at [48]-[49]; Barbaro at [40]. [81] In offences such as the one with which the Court is here concerned, the statistics from the Judicial Commission are a particularly blunt tool because the injuries which were actually inflicted are not described. Whether the sentences which were imposed upon offenders who had a prior criminal history, and what that criminal history was, are not described and, the range of possible factual circumstances involved in an offence such as this is broad."
The Court in Brown was dealing with an offence contrary s 35(2) of the Crimes Act. The same observations can be made in respect of offences contrary to s 33(1)(b) of the Crimes Act. The matter presently under consideration, as was set out in some detail when dealing with the facts, involves deliberately setting fire to another person, who had been doused with an accelerant.
At paragraph 15 of his unchallenged affidavit the offender sets out the conditions in custody. He is a SMAP prisoner, meaning that he is on protection. He is confined to his cell for 19 hours per day. He is unable to visit the prison library, but a book trolley comes to the pod in which he housed. He has not been able to participate in any courses beyond the Positive Lifestyle Programme, which has already been mentioned. I accept that there is some hardship with the offender's custodial conditions, which also go to the finding of special circumstances.

General Remarks

Mr King correctly submitted that the breach of the s 9 bond was the "easy" part of the sentencing exercise. I indicated at the sentence hearing that I proposed to deal with that matter by a relatively short fixed term of imprisonment that was wholly concurrent with the non-parole period to be imposed. I did not understand either counsel to dissent from that course. Accordingly, that is the manner in which I will deal with the breach matter, noting the principles enunciated by the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1 at [27].
There is also the issue of partial accumulation of sentence, noting that after the offender was arrested and taken into custody for the matter for which he appears for sentence parole was revoked. Parole was revoked on 14 October 2016 and the balance of parole expired on 13 January 2017. At the sentence hearing I indicated, accepting that the course I proposed involved a degree of pragmatism, that I would date the sentence from 14 November 2016. Again, I did not understand either counsel to dissent from that course, and accordingly, that is the date from which I will date the sentence and non-parole period. The issue of partial accumulation also goes to a finding of special circumstances.
In passing sentence I will need to give proper effect to s 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non-parole period, the nature of the offending, the injuries sustained and the need for general and specific deterrence clearly no other sentence than a substantial sentence of imprisonment is appropriate. No contrary submission was made.

Orders

In respect of the Bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act imposed by Judge Mahony SC of this Court on 19 April 2016 for the offence of Break and Enter with Intent to Commit a Serious Indictable Offence the bond is revoked. The offender is sentenced to a fixed term of imprisonment of 4 months to date from 14 November 2016 and which expired on 13 March 2017.
In respect of the offence that he on 28 August 2016 at Lockhart in the State of New South Wales caused grievous bodily harm to [JH] with Intent to Cause Grievous Bodily Harm contrary to s 33(1)(b) of the Crimes Act he is convicted.
Taking into account the matter on the Form 1 document, the offender is sentenced to a non-parole period of 5 years and 9 months to commence on 14 November 2016 and which will expire on 13 August 2022. Thereafter there will be a period on parole of 3 years to date from 14 August 2022 and which will expire on 13 August 2025. The total sentence is therefore one of 8 years and 9 months.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
I indicate that the starting point for the total sentence was one of 11 years imprisonment, from which was deducted 20% for the utilitarian value of the plea of guilty.
The non-parole period is approximately 65% of the total sentence, indicating a finding of special circumstances, the reasons for which have been enunciated within these remarks.

Amendments 07 June 2018 - Surname first, for easier searching. 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: 07 June 2018

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