R v Nicholas Murray Read

Discount for plea

1. The Crown agreed that the offender entered his plea of guilty to Count 2 at the earliest available opportunity: transcript, page 8, line 35. The Crown does not contest the substance of the offenders submission that pleas of guilty to Counts 3 and 4 were understood by the Crown to be available from the earliest opportunity. The Court was informed that in the proceedings the offender never proposed to defend Counts 3 and 4 and the timing of the formal entry of the pleas was delayed not by the offender but by the processes of the Crown. The Crown did not contest the offender's submission that he should have "all or most of the discount appropriate for Count 2": transcript, page 9, line 35.
2. Having been informed of the procedural history, I am of the opinion that for each of the Counts the offender is to have the benefit of a utilitarian discount of 25% in accordance with the guideline judgment R v Thomson; R v Houlton (2000) 49 NSWLR 383.

Agreed facts

1. On 8 April 2016, the victim in this matter, Bradley Gibbs (Gibbs), was released from custody at Manly Local Court for unrelated matters. He contacted some friends, Ms Michelle Connors (Connors) and Ms Samantha Williams (Williams), to obtain an address to be bailed to. Connors provided her address of 10/10 Francis Street Dee Why and agreed to collect Gibbs from court.
2. Upon his release, Gibbs, Connors, and another male went to The Steyne Hotel on The Corso, Manly where they played poker machines for a while.
3. Gibbs and Connors then left the hotel and requested to be picked up by Tai Reiny. Tara Reiny was also in the car when they were collected. The group headed towards Connors Dee Why address when Tara Reiny received a call on her mobile phone from the offender. He asked to be picked up from his parents' Balgowlah address to go with the group to Connors' residence.
4. The group collected the offender and drove towards Connors' residence. On the way they stopped at Warringah Mall where Connors and Tara Reiny exited the vehicle. This left Gibbs and the offender with Tai Reiny in the car.
5. The three men drove to Connors' residence in Dee Why. The offender and Tai Reiny went into the house. Gibbs had dropped his mobile phone somewhere in the car and remained in the driveway searching for it.
6. When Gibbs was walking into the unit block of the residence of Connors' he could hear the offender yelling out to him. As he approached Connors' unit, he saw the offender sitting on an internal set of stairs. He knocked on the door but there was no answer. Gibbs asked the offender to call Connors but the offender said he did not have his phone with him.
7. The offender then said to Gibbs "I've got to ask you something and I don't want you to lie to me. Is it true that you slept with Sammy?" Gibbs understood this to mean Samantha Williams who was previously in a relationship with the offender. Gibbs replied "yeah, what's the issue?".
8. The offender then said "it's a shit go" and jumped up from where he was sitting. He tried to throw a right-handed punch towards Gibbs but Gibbs stepped back and the offender missed. The offender reached into his back pocket with his right hand and pulled out a chisel. He shouted something at Gibbs, which again included the words "it's a shit go".
9. The offender then came towards Gibbs with the chisel gripped in his right hand. The offender used his left hand to punch Gibbs, connecting with his head around the back of his left ear. The offender continued to punch Gibbs to the face, connecting with his left eye area a number of times whilst holding his mobile telephone in his left hand. Whilst the offender was punching Gibbs, he was shouting abuse at him.
10. The offender then thrust the chisel towards Gibbs and Gibbs put his left hand up to try to protect himself. The chisel blade went into the webbed area between his thumb and his index finger. It pierced through the skin and came out the other side. There was a significant amount of blood. In the assault the chisel blade also came into contact with the Gibbs legs.
11. Gibbs began banging on Connors' apartment door again. There was still no answer. He turned around and tried to move away from the unit. The offender came at him again, punching him again to the face in the region of his left eye.
12. At this point, Gibbs did not know what to do or where to go. The offender suggested they leave together. Gibbs feared further assaults if he stayed at the unit block or did not do what the offender had requested of him.
13. The offender and Gibbs walked towards Dee Why. Gibbs told the offender he needed to go to hospital. The offender offered to escort him. The offender again started talking to Gibbs about having been intimate with Samantha Williams and how bad that form of conduct was.
14. Gibbs and the offender did not end up going to the hospital. They walked around Dee Why. Samantha Williams was walking in the area and saw them. She noticed that Gibbs had a tea towel or cloth wrapped around his left hand. She observed dry blood running down the left side of his face. She thought he appeared scared and nervous as he was shaking, twitching and looking around. The offender said to Samantha Williams "he got jumped in the alleyway across from Michelle's". Samantha Williams asked the offender if he had been there and the offender said that he had and that he had tried to help Gibbs. Samantha Williams did not observe any injuries to the offender. Samantha Williams tried to encourage Gibbs to get a lift in a car with another friend of hers but Gibbs declined.
15. Gibbs and the offender continued walking towards Pittwater Road. Samantha Williams went with them and tried to ask Gibbs what happened. The offender kept interrupting her, telling her not to "show him any concern" and telling Gibbs "don't answer her". When she persisted asking Gibbs what had happened, the offender became angry with her, and yelled verbal abuse at her from a position close to her face. Whilst doing so he dropped the chisel. Samantha Williams observed that it was an orange handled chisel that may have been "Craftright" brand. She estimated it was approximately 30 cm long.
16. The offender then got a call from one of the people back at Connors' Dee Why unit and he and Gibbs returned there. It was determined back at the unit that Gibbs required medical attention and an ambulance was called. Given the nature of Gibbs injuries, police were also contacted and attended the unit. The offender was present when police spoke to Gibbs. Gibbs told police he was "jumped in a laneway" by "three Lebo guys". He told police that these people didn't try to steal any of his property nor did they say anything during the assault. Police observed that Gibbs appeared nervous whilst providing this version. He had severely dilated pupils, moved around in his seat and was continually looking to the offender whilst giving this information to police. Gibbs provided police with this false version initially as the offender's presence made him fearful of further assaults.
17. Gibbs was escorted to the Royal North Shore hospital in the ambulance. The offender went with him in the ambulance. Gibbs felt like the offender was remaining with him to intimidate him against reporting the assault.
18. Upon Gibb's admission to the hospital, the offender told medical staff that he had been struck on the head multiple times and then stabbed in the left hand. It was observed that the wound penetrated the webbing between his thumb and index finger and that his left eye was grossly swollen and bruised. Plastic surgery was scheduled for the following day in relation to the hand injury however at 3 am on Saturday, 9 April 2016, Gibbs discharged himself from the hospital against medical advice.
19. Following his release from hospital, Gibbs spent more time with the offender. The two of them drank alcohol and listened to music with friends and then went fishing at Little Manly.
20. At 7 pm on the evening of 9 April 2016, Gibbs went to Samantha Williams house to stay. Over the following 10 or so days, the offender constantly showed up at Samantha Williams house, threatening Gibbs and demanding that he leave Williams' residence. On 16 April 2016, Gibbs decided to go to police and provide them with a true version of events from 8 April 2016.
21. As a result of the assault, Gibbs suffered the following injuries: 1. a penetrating laceration of the webbing between his left thumb and forefinger with an exit wound; 2. 2 fractures of his left cheek/eye-socket region; 3. soft tissue swelling on his face; 4. a bruise to his scalp; 5. a laceration to his left eyebrow; and 6. minor lacerations to his right arm and left leg.
22. Gibbs has persisting double vision to the left eye as a consequence of the assault upon him committed by the offender.
23. On 17 April 2016, the offender was arrested and cautioned at an address in Narraweena. He told police he believed Gibbs had been manipulated into providing the statement by Samantha Williams and that the two of them had set him up. He said that he had seen Gibbs walking through a car park and observed that he had been badly beaten so he had assisted him to Connors' unit.
24. The offender was taken to Manly Police Station and after a time out due to his state of intoxication and tiredness he participated in an electronically recorded interview with detectives. During the interview the offender told police that he had seen Gibbs in the alleyway between Francis Street and Fisher Road bleeding and in a bad way. He said that he had offered to take him to the hospital but said that Gibbs was enjoying the day too much and didn't want to go. He reiterated his belief that Samantha Williams and the Gibbs had conspired to blame him for the injuries suffered by Gibbs.
25. When asked by police why he had the chisel wrapped in a jumper, the offender answered that Gibbs was holding it when he found him in Dee Why and he didn't know if Gibbs had "disarmed the blokes that jumped him" or if he had carried it initially. The chisel was later seized during a warrant executed at Connors' unit.
26. During the interview, police asked the offender if he had used drugs on the day of the incident. He answered "oh, we all had, we all had, Brad as well… Injected, yeah… I didn't have much at all".
27. The agreed facts to this point require the following commentary:

• The beating of Gibbs by the offender was savage, sustained, caused serious facial fractures and lacerations, involve beating of the head, and has resulted in Gibbs suffering persisting double vision to the left eye.
• There was no relevant provocation by Gibbs inspiring the assault upon himself.
• There was no element of self-defence in the action by the offender whatsoever; it was a cowardly one way attack.
• The offender beat Gibbs' head whilst holding the chisel, such that Gibbs must have been in fear of stabbing if he resisted.
• The full width penetrating wound of the hand which the offender inflicted on Gibbs occurred when Gibbs used his left hand to protect himself from the offender's thrust with the chisel, which thrust was directed toward Gibbs and but for that defensive action may have resulted in far more severe injury.
• The offender continued to beat Gibbs in the area of his left eye even after Gibbs attempted escape into Connors' unit.
• The offender continued his intimidation, forcing Gibbs to lie to Samantha Williams and to police and to deny himself required medical treatment out of fear of further assault from the offender. This course of conduct was not spontaneous; it was a continuing course over more than a week between 8 and 16 April 2016.
• The offender repeatedly lied to police.

1. Following his arrest and interview, the offender was charged and remanded to custody. He made several phone calls from jail, which were recorded.
2. In relation to the assault upon Gibbs, the offender had the following conversations:
3. On 23 April 2016, the offender had a conversation with Samantha Williams. He told her 'I was jealous.' He accused Williams of lying to him about having sex with Gibbs and said 'That's why I lost it so bad…The last thing you said to me was, I had "I like the way Brad does it to me", that's just been going over and over in my head, man.' In a second recorded conversation on 23 April 2016, the offender told Williams 'The ice made me go mental.'
4. On 25 April 2016, the offender had a conversation with Williams. The following exchanges occurred: Offender: You know that I just wanted to fucking be with you, hey. Williams: Yep, yep…yeah I can see that's what you wanted but what you did was just go out of control, like completely. Offender: Yeah, well you shouldn't have had him at your house, man. Williams: No, that's not going to work. Offender: But you shouldn't have. Of course I'm going to think something was going on. Williams: Nope. Offender: And I still do…the ice affected me that badly. Cos I hope you still fucking care and you realise that.
5. At 1.21pm on 3 May 2016, the offender made a phone call from custody to Samantha Williams. The following exchange occurred: Offender: So you didn't sleep with Brad in the last couple of weeks? Williams: God no. Not at all. Offender: OK, I was going mental. I'm just telling you what was going through my head OK? I didn't know if you were having him upstairs or - I think more of you than that, I do, and I was saying that to people but everyone was saying to me 'Something has to be going on Nicko, for it to be like this. This isn't normal.' Williams: Maybe it's not their normal but it's my normal. Offender: OK. Hold on. I trust - Williams: No you didn't trust me at all. Offender: Yeah, I was going psycho, do you understand? Like, I went off that one, like, when I went off at Brad and all that shit, I went off that week and fuckin', I shot up that much fuckin ice in one day it makes me sick. And I swear that's what made me go fuckin' nuts. … Williams: How much did you shoot up? Offender: In a day? Williams: Yep. Offender: About 5 points. Nick just kept giving it to me, like, one point at a time. I'm telling you the truth, just fuckin, I think that's where everything went wrong. You said to me when I came to your house 'You gotta stop doing that shit.' You could see it on my arm couldn't you?' Williams: Yep. Offender: I knew you could, I knew you could. I was fuckin ashamed.
6. In relation to the offender's attempt to have the victim revoke his statement, provide a false version and/or not attend court, the following conversations were recorded:
7. On 22 April 2016, the offender thought he had contacted his father. Instead, he had called Samantha Williams. The victim, Gibbs, answered the phone and the following exchange occurred: Offender: Who is it? Gibbs: It's Brad. Offender: Who is it? Gibbs: It's Brad. Offender: Is that Brad? Gibbs: Yep. Offender: Fuck, I don't know, it was meant to be a different number. Brad, what's goin on bro? Gibbs: Hey? Offender: What's going on? Gibbs: Fuck all man. Offender: Yeah what have you done dude? Like, I'm not fuckin pissed at ya but what the fuck's going on? Please don't hang up bro, alright? I know this isn't fuckin what you wanted man, I know you. Gibbs: Yeah, but you went too far… Offender: Yeah, I know, I understand that bro, I understand that, but I went to the hospital with you. We were sweet. You swore to me fuckin nothing was going to happen brother. Gibbs: Yeah, but you come back to the house after that and - Offender: Yeah, I know. But why, how come you were there bro? Please don't hang up on me man. My life's falling apart. Like, I've been sleeping with her the whole time you were there bro. I don't know if you know that or not. I don't know what's going on with you and her. I'm fucking stuck man. What's going on bro? Like, Brad? Gibbs: Yeah … Gibbs: You called Sammy's phone but Sammy's not here at the moment. Offender: Yeah, well bro, can you please help me man and fuckin revoke that statement and I'll fuckin do whatever I can for you. I'll fuckin give you money or whatever man. It's fuckin, mate, we're fuckin boys man. I know I went too far bro. Gibbs: Fucking, you know I wasn't going to do nothing and then it come to the stage you kept coming back to the house and you - Offender: Brother, you gotta help me here eh, and I'll fuckin help you as best I can. Gibbs: My statement's done. I got my statement done. Offender: You can revoke what you said man, you can go back to the original fuckin story. Cos that's what I, I've said to them, I just said man I saw you in the fuckin, in the park walkin through - Man please don't do this to me, I'll get, like, it's up to 25 years jail bro. I know you can't live with yourself man. I went too far. I know I did. Gibbs: (unintelligible)…bro, it's forensics…blood and everything in the door step man. Offender: Yeah, I know that, yeah, cos that's where I was trying to help ya man, remember. Like fuck. Can you please fuckin help me bro, please.

• The Count 3 and Count 4 offences were part of a course of continuous conduct toward persuading Gibbs to lie to the police and to otherwise not assist the police in relation to his Count 2 offence. Whereas between 8 and 16 April 2017 being free in the community, the offender employed intimidation by threat of assault toward Gibbs, the Count 3 and Count 4 offences involved attempted persuasion by telephone calls made from prison to Gibbs and Samantha Williams demanding a lie to police, the revocation of Gibbs statement given truthfully to the police, the provision of false testimony and that Gibbs fail to attend court to give evidence when required.
• The offender attributes his consumption of the drug ice on 8 April 2016 with responsibility for his behaviour. On 23 April 2016 he said to Samantha Williams, for instance, "the ice made me go mental". On 3 May 2016 he told her that he had injected about 5 points, one point at a time.

Objective seriousness

1. In my opinion, the objective seriousness of the Count 2 offending is indicated by the criminal culpability of rising without provocation from a peaceful posture and environment against a friend who was not responding with violence, with the intimidation of a potentially lethal weapon to achieve dominance. It is also indicated by sustaining repeated and forceful bashing to the eye region and the head of Gibbs. That bashing and use of the weapon was so savage as to cause serious injury to Gibbs. The degree of recklessness was high. The wounding was significant but not in the high range for offences of this type. I assess the objective seriousness at about the middle range for an offence of this type.
2. I accept the Crown observation in relation to Counts 3 and 4 that they "can be considered together", having occurred over a relatively short period of misbehaviour of a similar kind: transcript, page 30, line 7.
3. Encouraging persons, particularly persons who are to give evidence, to retract their statements or to fail to give evidence is a serious matter. The offender clearly intended to thwart the course of justice. The Crown concedes that neither witness was prepared to go along with the offender's approaches. As submitted by Counsel for the offender, his attempts to thwart justice by use of a prison telephone was not only ineffective but was unsophisticated because of the risk that he would be detected. The statements had already been given to police by the witnesses. The prospects of him being successful were low. I acknowledge the statutory goalpost of a maximum term of 14 years. I accept the Crown submission that the objective seriousness of Counts 3 and 4 is in the lower range for offences of this type.

Subjective matters

1. Whether one recites the offenders personal history, criminal antecedent history and family support in detail or in broad summary manner, it is the story of an individual with problematic behaviours whose substance abuse, particularly of the drug ice, has led to the personal tragedy for Gibbs, the offender himself and his family of this offending. The story is not unique. It is the tragedy often seen in the court. It is not abhorrent behaviour only due to factors past. His drug dependence continues. It is the type of conduct which requires a sentence designed to express stern denunciation of the offending, general deterrence for those who might be tempted to so offend, recognition of the communities abhorrence of such serious violence. It is also required to have appropriate regard to the interests of the community in the rehabilitation of the offender such that the community might be saved from or have amelioration of the risk of his recidivism consequent of his problematic behaviours and drug addiction.
2. The offender was born on 2 December 1982. He was 33 years of age at the time of his commission of the subject offences. He is now 35 years of age.
3. The offender did not give evidence. His letter to the court dated 19 July 2018 was included in Exhibit 1. Whilst unsworn evidence of acceptance of responsibility for offending, regret and remorse are to be considered with some circumspection by the court; the all too common story at the core of the offender's letter, which story is corroborated by the evidence of his good friend and once apprentice Mr Matthew Rennix and his brother Mr Samuel Read; is problematic behaviour during school years, marijuana and substance abuse and ultimately ice addiction accompanied by an escalation of criminality reflecting the downward trajectory of his life.
4. He is a fully qualified and licensed electrician who whilst employed long-term for a substantial corporation earned elevation to the position of supervisor, responsible for 20 tradespersons.
5. For the period preceding the subject offending he is described as both having been living with his parents and as sleeping on the street. Much is said in the evidence of his having several long-term relationships with women and that each of them terminated on his partner being unfaithful. That history, as recounted by the offender to Mr Philip Gorrel, psychologist and social worker, causes me concern because of the offender's conduct in the subject offending being associated with his objection to and suspicions of unfaithfulness, viewed on his terms, in relation to Samantha Williams.
6. His antecedent history includes contravention of Apprehended Domestic Violence Orders on 2 December 2000, common assault and damage of property in association with domestic violence on 7 December 2013, contravention of Apprehended Domestic Violence Orders on 1 March 2014, and contravention of Apprehended Violence Order (personal) on 7 and on 10 April 2015. Plainly there is a disturbing course of criminal behaviour in that history which is not irrelevant to the present offending. I reject the submission of counsel for the offender that the offending was not associated with domestic violence type behaviour. I reject the submission made on behalf the offender that the antecedent history does not indicate criminal conduct of the nature of law-abiding citizens being subjected to violence: transcript page 26, line 17.
7. I observe also that whereas in the present offending the offender used a 30 cm chisel, on 3 March 2015 and again on 11 April 2015, only one day after his contravention of a Apprehended Violence Order, he committed the offence of custody of a knife in a public place. I do not know if this latter event was related to the AVO contravention, but the nature of his conduct described in the antecedents and in the subject offending is concerning as this is not the first offending associated with his being in possession of a weapon or implement available to be used as a weapon.
8. It is fair to observe that his antecedent criminal history displays a disregard for the law and a course of problematic antisocial behaviour without any substantial period of interruption for the whole of this millennium. His variety of criminal behaviour has included driving whilst suspended (multiple), driving whilst under the influence of alcohol (multiple), destroy or damage property (multiple), resist officer in the execution of duty (multiple), offensive language and obscene exposure, and offences of dishonesty including larceny (multiple) and unlawful possession of motor vehicle number plates. This history dilutes significantly the extent to which his ice addiction since ANZAC Day 2014 contributed to his behaviour. Plainly, the history reveals a course of problematic, abhorrent criminal behaviour.
9. His history of incarceration includes two breaches for consumption of the illicit substance Suboxone, also known as buprenorphine. The first offence was in June 2017. I am informed of a second offence about six weeks before the sentencing hearing. Counsel for the offender concedes that he is not drug-free: transcript page 23, line 15. In his letter to the court the offender wrote: I have an ongoing problem with drugs of addiction, predominantly ice (crystal meth). During my life alcohol and marijuana and most recently ice have contributed to holding me back. Although nothing has affected my mental health like ice.
10. The offender enjoyed an excellent upbringing in a good family including the privileges of private school education. He left school in year 11 consequent of being suspended and his refusal to return. His mother informed the reporting psychologist that he was disruptive at school and at home. In his trade he maintained long-term employment, the minimum with any employer being for a period of two years.
11. Mr Rennix described the offender, his master tradesman, as a very good worker who, as Mr Rennix understood it, consequent of his consumption of ice, became mentally scattered in thoughts and actions letting work fall to the wayside following which their relationship became more distant because the offender would not accept Mr Rennix's disapproval.
12. The offender's brother Samuel gave evidence of having noticed a downturn from about Christmas 2014 and about which time the offender started hanging out with a different group of people and it was evident that he was using hard drugs.
13. The expert psychologist reports that the offender lost his work consequent of his ice abuse behaviour in 2013. Accordingly, there is some disparity in the chronology of his downfall. As I have described, it was not a downfall from a law-abiding member of the community but rather, a worsening of his already problematic behaviour.
14. The expert psychologist commented, in summary, as follows:

• The offender has the support of his family [this is as evidenced in letters from family members to the court and in the oral evidence of his brother].
• It is highly likely that during childhood and adolescence he suffered Oppositional Defiance Disorder which with the influence of alcohol and illicit substances developed into Anti-Social Personality Disorder.
• The offender is impulsive, lives for the moment and does not consider the consequences of his actions.
• The offender presently suffers Personality Disorder, Alcohol Use Disorder and Substance Use Disorder.
• The offender's good intentions towards rectifying his life (as are expressed in his letter to the court) are likely to be unsuccessful without structured, supervised residential rehabilitation services because his behaviours are ingrained.
• The most appropriate course for rehabilitation would include the court ordering that Corrective Services Alcohol and Other Drug Workers assess the offender's suitability for residential rehabilitation when due for his release on parole and such rehabilitation be supervised in the course of parole.

Principles

1. In determining the appropriate sentence, the offender's self-induced intoxication by injection of what is reported to have been five points of ice, such that he described loss of control of his behaviour, is not to be taken into account as a mitigating factor in the commission of the offences: s 21A(5AA) Crimes (Sentencing Procedure) Act 1999. The evidence does not permit an assessment of whether his state of intoxication, whilst not an excuse or a factor mitigating the criminality of his conduct, was a relevant factor in determining the degree of deliberation involved: R v Coleman (1990) 47 A Crim R 306 per Hunt J at 327; nor whether it was a fact explaining the quality of recklessness in the commission of the Count 2 offence in particular. The offender thrust the chisel toward Gibbs whilst aware physical harm might be inflicted. His then power is obvious from the facial injuries caused by his punches, including fractures. It is not discernible whether his intoxication contributed some lack of precision of action such as to ameliorate that his thrust caused the chisel to pierce the hand of Gibbs. There was also evidence of injury to Gibbs' leg caused by the chisel.
2. When designing a sentence within the available and appropriate range of sentencing for the offences, it is not only the objective circumstances of the offences that are relevant to the determination. The range of sentences that may be imposed in relation to any offence and offender takes into account all of the purposes of sentencing and all of the circumstances of the offender and seeks, through instinctive synthesis, to arrive at a result that reflects each and all of those purposes. No one sentence is correct and, therefore, a range of sentences may be imposed, and each sentence within the range is an appropriate sentence: R v Hookey [2018] NSWCCA 147 at [13].
3. Not all reckless wounding involves the use of a weapon. In this case the offender's use of the chisel as a weapon is an aggravating factor to be utilised in determination of the objective seriousness of the offence or the moral culpability of the objective behaviour: R v Hookey [2018] NSWCCA 147 at [27], [35], [44] and [48]. This is so even though use of a weapon is not an element of the offence under section 33(1) Crimes Act. It would be rare, in an offence of this kind, for a weapon not to have been used: R v Hookey [2018] NSWCCA 147 at [47].
4. In my opinion, the Count 2 offending is in the character of criminality which worldly experience finds to be associated with the tragic and dangerous consequences of drug taking. That offending involved conduct requiring the courts denunciation and for stern sentencing which clearly conveys to those who might contemplate such criminality a message of general deterrence.
5. The injuries inflicted on Gibbs were serious. It is only luck that prevented his death. The offender's actions were taken without there being any provocation.
6. Subjective factors invite a sentence designed to take account of and address the special circumstances of the opportunity for rehabilitation most recently recounted in Sefian v R [2018] NSWCCA 194 at [76].

Instinctive synthesis

1. Offending of the kind of drug driven reckless wounding in Count 2 and disregard for the law found in Counts 3 and 4 carries a very heavy burden on the court for sentencing requiring denunciation of the offending and general deterrence in the community. Unfortunately, there is nothing rare about this behaviour in the context of substance abuse and in particular ice addiction. There is nothing rare about a person from good family, good income and good opportunity succumbing to the influences of ice and committing acts of severe violence, in this incident with the potential for harm from a 30 cm chisel in the hand of a tradesman.
2. Counsel for the offender did not dispute that it is lucky that Gibbs was not killed. The submission of the offender is that Gibbs and Samantha Williams were part of a group who consumed ice and in which the offender was involved. The proposition is that the offending in Counts 2, 3 and 4 was characteristic of conduct of the group. The expert psychologist describes the offender as easily influenced by people with whom he associates. Other than the report to the psychologist, the letter from the offender himself and evidence given by members of his family, there is nothing in the subject offending supporting his having been so led. He was the perpetrator of the violent attack, the threats and intimidation and the attempts to thwart justice.
3. Nevertheless, De Simoni provides a clear statement of principle that he is to be sentenced for the offence to which he has pleaded guilty of reckless wounding and not for the more serious offence of intentional wounding. I am satisfied, having considered the Counts separately, that the s 5 threshold is crossed in each count.
4. I am satisfied that whilst specific deterrence must be applied, in the circumstances of the offenders addiction and the nature of the offending which I have described, general deterrence and denunciation of the offending are of significant importance in the design of sentence. The criminal punishment of the offender must be in such proportion as to show concern for protection of society and deterrence of him and others who might be tempted to offend by participation in similar criminal enterprises: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; s3A Crimes (Sentencing Procedure) Act 1986.
5. The Crown concedes that on the face of the historical facts, including the offender's antecedent history; his problematic behaviour, including criminal conduct, significantly worsened over the last few years due to his abuse of the drug ice to which he is addicted. The Crown candidly did not take issue with the submissions made by counsel for the offender that the opportunity of extended supervised rehabilitation on parole was a special circumstance worth pursuing given the offenders now recognised mental health issues, his commitment to rehabilitation and the opportunity for the community to ameliorate his prospects of recidivism by treatment of his drug dependence. I accept the submissions of the parties in that regard. A parole period in excess of the normal ratio is appropriate with orders permitting the opportunity of residential rehabilitation under parole supervision.
6. It is impossible to predict the likelihood of recidivism. An extended period of parole supervision in the circumstances of the factors described in the expert psychologist evidence, including the obvious willingness and substantial capacity of the offender's family to provide accommodation, medical and therapeutic assistance and through his family and his friend Mr Rennix his opportunity to restore himself to work within his trade as an electrician, invites commencement of the course to rehabilitation under supervision of the Parole Authority in order to reduce the risk of recidivism. It is in the interests of the community as well as the offender to do so. Such supervision should be as designed by the Parole Authority according to the offender's then criminogenic needs. To some extent the non-parole period in this case must reflect the degree of mitigation of punishment in favour of rehabilitation through conditional freedom by supervised parole.
7. This is an appropriate case for the imposition of aggregate sentencing pursuant to s 53A Crimes (Sentencing Procedure) Act. The sentence must reflect the total criminality and be in proportion to the seriousness of offending. This is so regardless of what might properly be considered the different episodes of offending in Counts 3 and 4 to Count 2 because I accept, as the parties agreed in the presentation of the case, common underlying elements of addiction to ice and personal relationships in the offending. The total sentence ultimately imposed should be proportional to the overall criminality involved in all offending.
8. Indicative sentences for each of the Counts after taking into account the 25% utilitarian discount are as follows: 1. In relation to Count 2: imprisonment of 3 years (SNPP: 3 years). 2. In relation to Count 3: imprisonment of 12 months. 3. In relation to Count 4: imprisonment of 12 months.
9. In my opinion, a total aggregated sentence of imprisonment of 3 years and 6 months reflects the total criminality in proportion to the seriousness of the offending. On account of the special circumstances I allow an extended parole with supervision beyond the standard ratio. For the reasons given, I backdate the commencement of the term of imprisonment to commence 8 January 2017.

Orders 1. 1. You are convicted of the following offences:

• Count 2: Recklessly wounding Bradley Gibbs on 8 April 2016: s 35(4) Crimes Act.
• Count 3: Doing an act with intent to pervert the course of justice, namely, on 22 April 2016, offering Bradley Gibbs money to withhold true evidence: s 319 Crimes Act.
• Count 4: Doing an act with intent to pervert the course of justice, namely, on 23 April 2016, asking Samantha Williams to dissuade Bradley Gibbs from attending court to give evidence as a witness: s 319 Crimes Act. 1. You are sentenced to a non-parole period of 2 years and 3 months commencing on 8 January 2017 and terminating on 7 April 2019. 2. The balance of the term is 1 year and 3 months, commencing on 8 April 2019 and expiring on 7 July 2020. 3. I direct that prior to or at the time of parole a Services and Program Officer of Corrective Services (NSW) at Long Bay Correctional Centre or other Correctional Centre in which the offender resides, arrange for the offender to be assessed for eligibility for admission to a multi-diagnosis and drug rehabilitation Program at a Residential Rehabilitation facility. 4. The Services and Program Officer who has arranged this assessment for the offender is to prepare an Assessment Report for the Parole Authority outlining the outcome of this assessment. 5. The offender is to accept the assessment, supervision and guidance of the Parole Authority and obey all reasonable directions of the Authority during parole toward all services and programs to which he is directed and which might, subject to the discretion and determination of the Authority include: 1. Expert psychiatric or psychological assessment of rehabilitation needs. 2. Engagement in domestic violence counselling. 3. Engagement in violence perpetrator counselling. 4. Engagement in alcohol and other drug counselling. 5. Adherence to a mental health plan. 6. Engagement with a supervised residential rehabilitation program.

Amendments 23 October 2018 - [2] - typographical error [6] - typographical error 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: 23 October 2018