R v Partington

District Court of NSW|2019-12-19

Director of Public Prosecutions (NSW) (Crown) File Number(s): 2017/00004401 & 2019/00066601

INTRODUCTION

Shane John Partington was before the District Court at Parramatta, on 18 October 2019, for the commencement of the proceedings in the District Court for the determination of sentence for an offence of reckless wounding. The matter was adjourned from that date for mention to 1 November 2019. The offender also consented to this Court dealing with a breach of a bond pursuant to the Crimes (Sentencing Procedure) Act 1999. On 1 November 2019 the previous order for a sentence assessment report was confirmed and the matter was adjourned to 19 December 2019 for hearing. On that day the offender appeared, acknowledged his plea of guilty in the Local Court to which he appeared before me. Once again, he consented to the breach of bond proceedings being continued before me. I was presented with evidence by way of documents and the matter was adjourned until today for judgement and the imposition of sentence. Submissions were made on the last occasion, speaking to written submissions that had been before me, provided by the parties. The offender did not give evidence in these proceedings.

THE OFFENCES

The sentences to be determined are in respect of two matters.
The first is the offence of reckless wounding contrary to s 35(4)(b) Crimes Act 1900 for which the maximum penalty is imprisonment for seven years with a standard non‑parole period specified for the purposes of Part 4, Div 1A Crimes (Sentencing Procedure) Act 1999. The table to those provisions specifies three years standard of a non-parole period for this offence.
There is also an offence of assault occasioning actual bodily harm, contrary to s 59 Crimes Act 1900. That was determined by the magistrate in the Local Court at Penrith on 22 September 2017. Acting Magistrate Milanovich said at p 6 of the transcript of his judgement: "In my view, this is a matter that does cross the s 5 threshold, and a custodial sentence is warranted, but I am prepared, in this case, to give consideration to suspending that sentence, Ms Zahra. I do not know how this is going to affect his parole."
There is further discussion and shortly thereafter His Honour announced his intention to impose the bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999, in place of a suspended sentence pursuant to s 12 Crimes (Sentencing Procedure) Act 1999. The bond was for a period of two years from that day. The offending, with which I am concerned here today, for the reckless wounding, was in breach of that bond.
The maximum penalty, to which he would be exposed upon indictment for that offence, is imprisonment for five years, but because the matter was dealt with in the Local Court there was a jurisdictional limit that applied of two years imprisonment. The benchmark for the purposes of the determination of sentence, however, is imprisonment of five years.

Existing good behaviour bonds under section 9

Pursuant to s 98(1) Crimes (Sentencing Procedure Act) 1999, promulgated at the time the bond was entered, this Court was empowered to deal with the breach of bond with the consent of the offender. Since the bond was entered the Act was amended by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 with the inclusion of Clause 74 in Schedule 2 Savings, transition and other provisions of the Act. This provides, 1. This clause applies to a good behaviour bond entered into under section 9 of this Act (the section 9 bond) before its substitution by the amending Act and in force immediately before the commencement day. 1. The section 9 bond is taken to be a community correction order (the community correction order) made under section 8 as substituted by the amending Act. 2. The community correction order is on conversion subject only to - 1. the standard conditions of a community correction order, and 2. any conditions referred to in section 95 (c) that were imposed on the section 9 bond before the commencement day and in force immediately before that day, and 3. any other conditions prescribed by or determined under the regulations. 1. The community correction order expires on the date set by the sentencing court before the commencement day in relation to the section 9 bond. 2. If a condition relating to supervision was imposed on the section 9 bond by a court before the commencement day and was in force immediately before that day, the offender is subject to such obligations in respect of the condition as may be prescribed by regulations made under the Crimes (Administration of Sentences) Act 1999. 3. Any warrant issued under section 98 in respect of the section 9 bond before the commencement day continues to have effect. The warrant authorises a police officer to arrest and bring the offender before a court to be dealt with for an alleged breach of the section 9 bond. 4. An offender who is brought before a court on a warrant referred to in subclause (6) is to be dealt with under sections 107C and 107D of the Crimes (Administration of Sentences) Act 1999. 5. Section 89 (2A) as inserted by the amending Act applies to a good behaviour bond to which this clause applies.
Procedures for breaches of community corrections orders are found in s 107C Crimes (Administration of Sentences) Act 1999 which relevantly provides, 1. If it suspects that an offender may have failed to comply with any of the conditions of a community correction order - 1. the court that made the order, or 2. any other court of like jurisdiction, or 3. with the offender's consent, any other court of superior jurisdiction, 4. may call on the offender to appear before it. 1. ... 2. ... 3. For the purposes of subsection (1) (c), a court is of superior jurisdiction to the court that made the community correction order if it is a court to which the offender has (or has had) a right of appeal in respect of the conviction or sentence from which the order arises. 4. If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a community correction order, a court - 1. may decide to take no action in respect of the failure to comply, or 2. may vary or revoke any conditions of the order (other than standard conditions) or impose further conditions on the order, or 3. may revoke the order.
Section 107D of this Act provides the consequences of revocation of a community correction order: 1. If a court revokes a community correction order, it may re-sentence the offender for the offence to which the order relates. 2. The Crimes (Sentencing Procedure) Act 1999 applies to the re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction. 3. An offender who under this section is re-sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.
In the exercise of the power now given in these provisions my decision is to revoke the conditional liberty to which the offender was subject at the time of the principal offence, and in place thereof to nominate a term of imprisonment which will be included in the aggregate sentence that I will specify for both offences at the conclusion of this judgement.

THE STANDARD NON-PAROLE PERIOD

The standard non‑parole period is a matter relevant to the determination of sentence in accordance with authority, including Tepania v R [2018] NSWCCA 247, in particular the judgement of Johnson J with whom Payne JA and Simpson AJA agreed. The provisions introducing standard non‑parole periods are set forth in Part 4, Div 1A Crimes (Sentencing Procedure) Act 1999, amended to their present form following the decision of the High Court of Australia in Muldrock v R [2011] HCA 39, adopting the principles that were enunciated there. Thus the provisions now require the Court to bring to account that the standard non‑parole period for an offence is that which is included in the table to the provisions. It represents the non‑parole period for an offence in the table that falls within the middle range of objective seriousness, taking into account only the objective factors affecting the relevant seriousness of the offence.
The standard non‑parole is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account; the Court must record its reasons for setting a non‑parole period that is longer or shorter, identifying the factors are brought to account.
The objective gravity of the offence of reckless wounding will be assessed upon the consideration of the objective factors affecting the relevant seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending, bringing to account relevant factors in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence.
When I determine sentence I must identify the non‑parole period that would apply because this is a standard non‑parole period offence.
This determination is but part of the task whereby the Court settles upon the appropriate sentence, regardless whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. I must not embark upon and arithmetical or staged process of reasoning when assessing appropriate sentence but must identify all relevant matter bearing upon the question of the appropriate sentence in the process of intuitive synthesis discussed in various authorities, including by McHugh J in Markarian v R [2005] HCA 25. In determining the sentence which I would indicate as appropriate for the reckless wounding, the standard non‑parole period and the maximum penalty are legislative guideposts before the Court, together with the other established sentencing practices and by references to matters identified where relevant in ss 3A, 21A and 22 Crimes (Sentencing Procedure) Act 1999.
The Crown submitted and as did counsel appearing for the offender that the objective gravity of this offence falls ever so slightly below mid-range of objective seriousness. I agree with this proposition advanced by each of the parties; I will elaborate on the reasons for that decision after I have rehearsed the facts.
The judgement from Johnston J in Tepania v R (ibid) is also helpful in this exercise. His Honour at para 110 summarised the provisions found at Part 4, Div 1A Crimes (Sentencing Procedure) Act, consistent, as I perceive it, with what I have said so far. His Honour went on in para 112 to reflect upon the relevance of general sentencing principles that must also be brought to account and I will quote his Honour from that paragraph: "In sentencing for an offence (whether or not a standard non‑parole offence), a Court should make an assessment of the objective gravity of the offence, applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non‑exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender but of course were connected with, or materially contributed to the commission of the offences, including (with a case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional distress which accounts for criminal conduct, is always material to the consideration of appropriate sentence..."
His Honour there cited authority in support of the analysis he provided. He went on to discuss the concept of moral culpability and the flexible use of that term in the cases dealing with the determination of sentence, including in decisions such as Veen v R (No 2) [1988] HCA 14, supporting the view that mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability. There is also reference to the decisions of the High Court dealing with abuse of alcohol arising in circumstances of a social disadvantage, such as Munda v The State of Western Australia [2013] HCA 38 and Bugmy v R [2013] HCA 37. It is now accepted that such challenges in life, particularly through formative years, do not ever lose their impact upon such as this offender and are always matters relevant to the determination of sentence regardless of the frequency with which the offender might come before the Court for criminal behaviour.
The various principles which I have touched upon are relevant in this case, in light of the history attributed to the offender by the author of his sentence assessment report and psychiatrist, Dr Eagle, for it is the case that before the Court is a man who has his challenges, burdened by alcohol, and sought to address the factors that have led to his prosecution and incarceration from time to time, who I would find, is sincere in his endeavours to rehabilitate, but who regrettably, has demonstrated limited capacity to pursue rehabilitation leaving him, because of the consequences of his misconduct, to be somewhat of a risk to himself and to other members of the community.
As the Crown concedes, this case is replete with special circumstances and although he must suffer a term of imprisonment, he is entitled to a finding in those terms with a reduction in the custodial component that might otherwise have been imposed, and an extended period on parole so that he might to the extent possible pursue his opportunities for rehabilitation.

PRE-SENTENCE CUSTODY

He has been in custody in respect of this prosecution since his arrest on 28 February 2019, the date of the offence. However, he was subject to parole at the time he committed this crime and in due course was required to serve the balance of parole, a period from 1 March 2019 to 19 June 2019, identified as three months and 19 days in the current sentence summary.
In addition to that, on 19 June 2019 to 16 July 2019, he was held in custody, subject to an interim detention order, following upon proceedings taken in the Supreme Court of New South Wales, before his Honour Walton J who delivered his decision on 18 June 2019, upon an application brought by the State of New South Wales, seeking a continuing detention order, or in the alternative, an extended supervision order because of the risk the offender was said to pose to the community. [1] I have been provided with a copy of his Honour's helpful judgement and I am satisfied that it reflects the material that has been tendered, both in the Crown case and on behalf of the offender. His Honour noted at para 152 that the Crown sought as its primary relief an interim detention order and in conclusion at paras 163 and 164, respectively his Honour wrote: "In the circumstances, the Court proposes to make an interim detention order for a period of 28 days. There was common ground as for the date of commencement of the order. The Court will further order that, pursuant to s 15(4) of the Act, two qualified psychiatrists, a psychologist, should be appointed to conduct a separate examination of the defendant."
In light of the efforts to comply with his supervision otherwise, there ought to be some accumulation and concurrence employed in the allocation of a commencement date. There is discretion in the Court in this regard, discussed by Simpson J in Callaghan v R [2006] NSWCCA 58.
But for this offending, one could come to the view that the offender would have either continued on parole or been granted parole upon a fresh application. It was however revoked, for this offending.
I note that this offending was a significant part of the material before the Supreme Court leading to the interim detention order. As I said, there is evidence upon which I could conclude that he has endeavoured, I would suggest with a measure of sincerity, to pursue his rehabilitation albeit without the capacity to pursue it successfully.
Thus, I have come to the view that in the exercise of my discretion, I should commence the sentence I impose today in the aggregate on 28 May 2019.

The Assault Occasioning Actual Bodily Harm

I shall deal first of all with the facts relevant to the breach of the s 9 bond. The material tendered includes a copy of the statement of facts, the pre‑sentence report dated 20 September 2017, an alcohol and other drug residential rehabilitation report of 27 February 2017, a report from Dr Gordon Elliott of 15 June 2017 and a report by Ms Danielle Hopkins of 12 September 2017, in addition to the transcript of the proceedings before Acting Magistrate Milanovich, to which I referred earlier.
The facts were in respect of two offences, one of assault occasioning actual bodily harm and the other, a driving on a road whilst disqualified. The bond pursuant to s 9, which I am dealing with at the moment, was in respect of the assault charge. He was released to parole on 16 December 2016 and resumed a relationship with the victim of the assault, and was living with her in her home in the Western Suburbs. On 3 January 2017, he went drinking and did not return home that night but on 4 June 2017, at midday, he telephoned her and asked her to pick him up. Thus, the catalyst for his misconduct, the ingestion of alcohol, was once again the author of his harm, also of his misconduct. She drove a motor vehicle which he had recently purchased and registered in her name because of his status as a disqualified driver. When he entered the vehicle, she saw his level of intoxication. He asked her drive him to Ermington and she headed off towards the M4 freeway. An argument evolved. She became irate because he revealed that he had spent the night with his former girlfriend. She was also concerned that he had missed his parole appointment.
The argument became heated. She pulled over in a backstreet. She said she struck the offender a number of times. He lost his temper and punched her to the nose. She attempted to leave the vehicle but tripped and hit her head on the street below and in further flight, tripped again, striking her head. He then entered the motor vehicle and drove away.
He was disqualified for a period of five years from 7 November 2015 at that time. She ran to Mount Druitt Police Station. She had swollen cheeks, bruising to both eyes, and a dislocated finger. She was taken to Nepean Hospital by ambulance and was given conservative treatment. Thereafter, she spent time with the offender at a hotel, on 10 and 11 January 2017. He was arrested on the 12th of 2017, without any memory of the event because of his state of intoxication.
Some of the injuries were, it would appear, suffered other than by way of the punch that she suffered from the offender, but it is relevant to note that in her attempt to escape his violence, she fell and was injured, and that should be brought to account, not as part of the sequelae of the assault but within the matrix of facts and circumstances relevant to the determination of sentence in that matter. I have reviewed the pre‑sentence assessment report that was before the magistrate. It is noted that he had no institutional misconduct, had employment within gaol, and was the subject of positive reports from the staff in the centre where he was held. There was a brief summary of his family and social history, including his abuse at the hands of his stepfather, loss of his mother, his experience as a victim of sexual assault. His attempt at education and employment is discussed and there was a clear acknowledgment of wrongdoing and recognition that the source of his problems is his misuse of alcohol. He did not dispute the police facts. He took full responsibility and was attributed with contrition and was thought to be genuine with positive steps taken after the event to address his alcohol abuse when ultimately released into the community.
His alcohol and other drug residential, rehabilitation and sentence report is included. There were difficulties with that. There is the report from Justice Health by Dr Gordon Elliott, who noted he did not present with any symptoms of major mental illness though he had significant anxiety and history of severe alcohol abuse. The report by psychologist, Danielle Hopkins, provided a more expansive history than contained in the pre‑sentence report which is not unusual. There is reference to his substance use history and his endeavours to address those difficulties. He acknowledged his disgraceful and unacceptable behaviour, as he described it. His traumatic experiences in custody are discussed. His anxiety symptoms were noted. The formulation includes reference to his stable environment with his mother until the age of six, and thereafter, exposure to domestic violence with his stepfather and problematic modelling of alcohol consumption. His mother died when he was 11, leaving him with a sense of abandonment. His relationships thereafter had been harmful and distressing, with partners who ultimately did not provide him with the support that he needed. His childhood was marked with passivity and experiences of being bullied and isolated as a child. He developed a general anxiety disorder over years, symptoms of post‑traumatic stress disorder and continuing anxiety.
Bringing all of that material together, I am satisfied that it is appropriate that I should revoke the bond and I do so and in lieu thereof, identify as indicative in a sentence of imprisonment for nine months which I shall include with an appropriate measure of concurrence in the aggregate sentence for this offence and the offence of reckless wounding.

The Reckless Wounding

I shall now deal with the facts relevant to the offence of reckless wounding. The particulars of the offence are set forth in the certificate now employed in proceedings such as this. They are that on 28 February 2019, at Parramatta in the State of New South Wales, the offender wounded AA, reckless as to causing actual bodily harm to him. The offender pleaded guilty to that offence in the Local Court and is entitled to a discount of 25% for the utility of a plea of guilty as provided in the legislation, and that now governs these proceedings. This will be applied to the sentence that would otherwise have been imposed upon the synthesis of objective and subjective material that is before me, relevant to the offence.
I pause to note that I have brought to account, a discount of 25% for the assault occasioning actual bodily harm offence also, he having pleaded guilty of the offence before the magistrate.
For the wounding he was prosecuted for a more serious offence initially but that was withdrawn in the Local Court. It was an offence contrary to s 33 (1) (a) Crimes Act 1900, and thus although objectively one might conclude that the evidence, if it established the facts I am about to describe, would provide a sound basis for a circumstantial case of specific intent for the more serious charge, care must to be taken to ensure that he is not punished for other than misconduct which is before me, upon the offence charged.
He was born in 1970 and now is 50 years of age. At the time of the offence he was living in a unit in George Street, Parramatta and had been there for about eight months. The victim resided in a unit within the same building and had been there for more than ten years. The offender's unit was on the second floor of the complex and the victim lived on the floor above. They knew each other as neighbours. About 10.30am on Thursday, 28 February 2019, the victim was in his unit lying on a couch, reading the newspaper, when he heard a knock at his door. He opened the door and saw the offender there. The victim said, "Hi, how are you". The offender stepped into the unit and pulled a kitchen knife from his right shorts pocket. Holding that in his right hand, he lunged at the victim and said, "You slept with my wife". He stabbed the victim to the right upper arm and again lunged at the victim with the knife. The victim grabbed the offender's right wrist with his left hand and a wrestle ensued on the couch. The offender punched the victim to the face with his clenched fist. The offender was able to free his wrist from the victim's grip and using the knife, punched at the couch. He was aiming for the victim's upper body. The offender and the victim then wrestled on the floor. The victim grabbed the blade of the knife and snapped it from the handle. He suffered cuts to his left hand in doing so. The victim then threated the offender with the knife blade and said, "What the fuck are you doing, get the fuck out of here". As the wrestling ensued the offender suffered a stabbing wound to his right thigh. The offender left the unit, taking the handle of the knife with him and the victim contacted police.
There is in the agreed statement of facts, an image of a handle, and an image of the blade that had been broken from it. The blade measures about 15 centimetres, the handle about 10 centimetres. The police arrived shortly after and saw the offender carrying a bike down the steps of a complex, from the second floor towards the ground floor. He was bleeding from a wound at the top of his right thigh. He had blood on his shirt and a small amount of blood on his hands, and a small amount of blood on the right side of his head. He was given a roll of toilet paper to apply it to the wound on his leg until the arrival of ambulance officers. They told him he would be searched. He reached into his pocket and withdrew his wallet and the black handle which he placed on the steps when told to do so by the police officers. He was taken to Westmead Hospital for treatment. He was suffering the effects of intoxication.
The victim was taken to Liverpool Hospital by ambulance where he remained overnight. It appears that he has made a full recovery from the following wounds: 1. An approximately 1.5 centimetre full thickness laceration to the right axillary fold, lateral to the chest (inner upper arms/bicep region). This was closed with three sutures. 2. An approximately 0.5 centimetres full thickness laceration to the right posterior arm/posterior axillar. This wound was closed with one suture. 3. Superficial lacerations to the third and fourth digits at the level of the middle phalanx on the palmer surface. 4. Full thickness laceration through the subcutaneous fat on the left fifth digit overlying the distal inner phalangeal joint on the palmer surface. This was closed with two sutures, and, 5. Pain over the nose and slight bruising under the right eye.
The victim was given intravenous antibiotics and pain relief and was discharged the day after his admission with a recommendation of follow up after seven days with his general practitioner. The opinion given by the treating doctor was that the wounds were consistent with a knife entering the axillary fold and exiting the back of the arm. The lacerations on the fingers were consistent with a knife blade being grabbed. Full recovery was expected.
The offender participated in an electronically recorded interview, during which he agreed that he had stabbed the victim but provided a version which characterised the victim as the aggressor. Although this apparent attempt to minimise his involvement was his initial attitude, I am satisfied that since common sense has prevailed and he recognises the role he played in this crime and accepts responsibility for it, and thus, and as conceded by the Crown, I am satisfied of contrition and remorse.

THE OFFENDER

His antecedent report is a matter of concern. It extends over 18 pages. There is reference in the report by the psychiatrist, Dr Eagle, tendered in his case in these proceedings, to a prosecution for murder which succeeded until his successful appeal to the Court of Criminal Appeal where, according to the representation with which he is attributed, he was convicted of manslaughter. I found no such entry in his antecedent report or a relevant entry in his custodial record. I sought guidance in relation to that at the commencement of the hearing today. This confirmed for me that there has been some misunderstanding between the offender and psychiatrist, and that he was successful in having a verdict of acquittal entered in the Court of Criminal Appeal. [2]
He was first in a court in December 1986 in Minda as a juvenile for breaking and entering with intent, and entering a building with intent. Thereafter, he has persistently offended and up until p 16 of the antecedent report he has entries for those offences to which I have referred, entries for nine occasions of causing damage to property, once for attempting to break and enter, once for stealing, once for offensive language, on ten occasions for assault, on 16 occasions for driving offences, once for entering closed lands, once for cultivating a prohibited plant, once possessing a prohibited drug, once for possessing an unlicensed firearm, on four occasions for assault occasioning actual bodily harm, once for an offence cause grievous bodily harm with intent, once for animal cruelty, once for contravening an apprehended violence order.
From p 16 of the antecedent report there are further offences for driving misconduct including dangerous driving, negligent driving not causing death, not giving particulars, and false representations resulting in a police investigation. These ended up with imprisonment, fines and the application of s 10A Crimes (Sentencing Procedure) Act 1999. He appealed to the District Court in respect of three of those offences, whereupon the convictions were confirmed with some variation of the penalties imposed. There was a further occasion of contravening an apprehended violence order and the assault occasioning actual bodily harm and drive whilst disqualified, the subject of the proceedings for which this s 9 bond was imposed.
He has spent a significant part of his life as an adult in gaol. A custodial record has him in custody on 9 May 1997 and from 20 December 2003 to 17 March 2004, on 28 August 2004 to 16 December 2009 [3] , on 20 February 2013 to 1 March 2013, on 8 and 9 April 2013, on 28 June 2013 to 15 December 2016, on 14 January 2017 to 11 November 2017, on 6 March 2018 to 14 March 2018, and then from 1 March 2019. That is the record of custody within Corrective Services. It does not include those times he was in police custody, including from the point of arrest in this case.
Relevant to his antecedent history is the judgement from his Honour, Sides QC DCJ, in the District Court at Parramatta on 21 October 2013. The offender was there charged with causing grievous bodily harm with intent to cause grievous bodily harm, and assault occasioning actual bodily harm on another victim. He was allowed a discount of 20% for his pleas; the circumstances of the offending are described from p 1 of the judgement.
This was an unprovoked attack upon the first victim leading to grievous bodily harm. The victim was awaiting service in a café when the offender ran into the store and struck him on the back of his shoulder. The victim responded, "What are you doing"? The victim was also attributed with having called the offender, "a prick". The offender responded by repeating that term and then punched the victim to the cheek and eye area, causing him to fall backwards with pain, dizziness and disorientation. He struggled to the front of the shop. The offender said, "See you later", and walked out onto the street. There, the offender said, "yeah, yeah cunt, come on, kill me, yeah, do you want some more". The victim returned to the café and as he was attempting to close the door the offender continued to yell and scream, grabbed a milk crate, raised it above his head, walked closer to the victim, and used it to strike the left side of the victim's head. The offender then ran across the road.
The second victim was parked in a Land Cruiser on the opposite side of the street and saw these events. The offender approached him, took him by the clothing, attempted to pull him through the window of the motor vehicle, punched him to the right side of his face causing his glasses to come off, and punched him again hitting the right side of his forehead. He received a further two punches to his right forearm. The offender then took a couple of steps back and began to shadow box and made a rah‑ing noise. A security guard came upon the scene, took hold of the offender and guided him to the footpath. Police responded shortly thereafter. He was later seen by the security guard in a motor vehicle. The consequences of the attack upon the first victim were a fractured cheekbone requiring fixation under general anaesthetic and a fractured left orbital floor eye socket. The second victim suffered bruising to the right facial area and right forehead, as well as to the rear of his elbows.
His Honour rehearsed the offender's complex history and in due course, drawing upon the evidence leading to the finding of a long history of bipolar disorder and consumption of alcohol in the absence of medication, came to the view that there should be a sentence of imprisonment imposed.
The determination of bipolar affective disorder was offered in the report by a psychologist, Timothy Watson‑Munroe, of whom his Honour was significantly critical, with clear justification in my view. His Honour pointed to inconsistencies in the report and noted at p 10 of the judgement that the only part of the report that remotely addressed the topic of causal connection between the offender's mental state and the offences was within the heading, "Opinion". His Honour quoted a passage from that section but then went on to criticise the way it was expressed, and ultimately was left with the task of having to decipher what he perceived the psychologist to be endeavouring to say in this less than adequate document.
Ultimately, his Honour imposed a term of imprisonment, including a non‑parole period of ten months over a total term of 16 months for the second offence, and a non‑parole period of two and a half years, of a total term of five years for the first. The sentences were accumulated with the first sentence ordered to commence on 16 December 2013, and the second sentence to commence on 16 June 2014. He was in due course released to parole and was subject to parole at the time that the offence with which I am concerned, and for the offence of assault occasioning bodily harm upon the woman with whom he was living discussed earlier was the subject of a s 9 bond.
Helpfully, his Honour Walton J provided an extensive analysis of the history of offending which does not require me to provide another reflecting the propensity for misconduct when driven by alcohol in the absence of the medication he should be taking. His Honour also referred to the findings of his Honour Sides QC DCJ, and ultimately, drawing upon that history, the assessments that were before him, and the judgement of Sides QC DCJ, came to the view at para 150 of his Honour's judgement: "Having regard to the material before the Court for the preliminary hearing, and further, having regard to the foregoing discussion of mandatory factors, I am satisfied to a high degree of probability, and furtherance of ss 5B(d), or 5C(d), the defendant poses an unacceptable risk of committing another serious offence if not kept under detention or supervision."
The offender's breach of parole report, written on 28 February 2019, includes the acknowledgment that his response to supervision had been satisfactory. He attended Grieve House Residential Rehabilitation Centre, to address chronic drug and alcohol issues, and successfully completed the 12‑week program on 6 February 2019. He maintained compliance with support services thereafter. He engaged with the Centre for Addictive Medicine and commenced participation in the Dialectical Behavioural Therapy Group Program, with the Drug, Health and Psychology Service, on a weekly basis. He maintained compliance with attendance and engagement but it was noted that he was starting to experience difficulties with the maintaining structure. A notification was given on 28 February 2019 of his arrest for these matters and thereupon, his supervision was suspended whilst in custody. Revocation of parole was recommended.
The material tendered on behalf of the offender included the report from Dr Kerri Eagle of 13 December 2019. Dr Eagle is a forensic psychiatrist of whom I am aware, and who has provided reports on multiple occasions for proceedings before me. She candidly acknowledges the limitations in his opportunity to assess the offender by reason of the conduct of the consultation through an audio video link from the offices of the Legal Aid. I am loath to criticise psychologists and psychiatrists for attending to the task through that medium because of the limitations to which the psychiatrist has referred, for it is an understandable course bearing in mind the difficulties that are sometimes experienced having access to people in custody for an appropriate period of time to perform this important work.
The fact that there are difficulties is perhaps reflected in what appears to have been a misunderstanding by the psychiatrist, upon the representations attributed to the offender in respect of the acquittal from the charge of murder in the Court of Criminal Appeal after conviction at trial, and the perception taken by the psychiatrist that he was convicted of manslaughter in place of that more serious charge. As I noted earlier, there is no reference to any such conviction in the material before me and it has been acknowledged that there appears to have been some breakdown in communication. That appears though, to be the only problem in that regard, save that I am appropriately circumspect about what is attributed to him regarding the circumstances of the offending and the contribution he has attributed to the victim in this offence. [4]
The offender did not give evidence. I am left with representations in the documents about those matters and although, as was made clear by Smart AJ in the decision of Qutami [2001] NSWCCA 35, the representations attributed to the offender in such reports are admissible, the Court must be circumspect when it is considering the weight to be attributed to those representations.
I am satisfied that his expressions of his wish to rehabilitate and the history of challenges he suffered in his earlier life and his endeavours to rehabilitate I should accept because they are presented from multiple sources.
However, with regard to the event, as was indicated by the Crown, the victim was not required to be tested upon what the agreed statement of facts contained, and accordingly I shall proceed to determine sentence upon that description.
Dr Eagle describes what was said by the offender at p 4 of the report when dealing with the circumstances of the offending. From what I have said, I do not intend to deal with the matter upon that basis.
His past psychiatric history, supported elsewhere, is summarised. He spoke of having been refused help on earlier occasions. Whether that be accurate or not, I accept that that is the perception of the offender. There is reference to him having jumped in front of a car and having consequently suffered a bruise to his leg, leading to his admission to Cumberland Hospital. There is reference to his anti‑depressant medication. There is reference to a psychologist and his participation in the SMART Recovery Program and CAMHS. There is reference to his ten to 12 presentations to hospital, his participation in Glebe House, his pursuit of those opportunities without relapse, his recognition that he has potential and that he cannot pick up his first drink because of the consequence that will flow.
He acknowledged that he stopped taking medication. The reason as I understood it from elsewhere, was the expense. He acknowledged that when abstinent from alcohol he experienced anxiety but no signs or symptoms suggestive of maniacal psychosis. There is a reference to a past attempt to gas himself when aged 23, when he depressed and lonely. The reference to the conviction for murder and the proceedings thereafter, appears at p 5. I do not rehearse that again. That also appears at p 6.
His personal history includes the circumstances of his birth, his siblings, his mother having suffered a frank brain injury in a motor vehicle collision, her misuse of alcohol, and his access to alcohol by way of shandies from the age of six, his reference to his sexual abuse when aged four to six years, his relationship with his stepfather who was violent and alcoholic, the regular physical violence that he suffered and which was inflicted upon his mother. His mother died from cancer when he was 11. He has never known his biological father, his referred to his bullying at school, his work history in factories and the construction industry, and represented that he has always worked, which must be when he is not in gaol, although when in custody it appears he has been gainfully employed.
There is a discussion of his six serious relationships and his goals are identified at p 7 of the report. Upon mental state examination, he demonstrated good intellectual insight without any signs or symptoms with psychosis. There was no display of depressive themes or grandiosity, no abnormal pre‑occupations. He showed evidence of genuine engagement at formulation of strategies to address his alcohol use.
Dr Eagle then reviewed the additional documents that were provided to him, including the pre‑sentence report to which I earlier referred. He was in due course diagnosed with a severe alcohol use disorder and remission in the controlled environment. He noted at p 9: "Mr Partington has been previously described as exhibiting hypomanic symptoms in the context of anti‑depressant use (2011). He does not describe any further episodes of hypomania. It is that the symptoms occurred over time when Mr Partington reports of ongoing problematic use of alcohol and cannabis. It is difficult to interpret symptoms of mood disturbance during periods of substance abuse. It is possible that Mr Partington may have an underlying mood disorder or that these symptoms were related to intoxication or part of the more pervasive emotional dysregulation. I am of the view that it is unlikely that Mr Partington has an underlying mood disorder, such as bipolar disorder, particular given Mr Partington has taken an anti‑depressant medication for a period of time with good effect and with evidence of hypomania."
The doctor then provided responses to specific questions in the balance of the report and then provided a recommended treatment management program, all of which I have read.
To the extent that the report from the psychologist, Watson‑Munroe, suggested bipolar affected disorder, I put that entirely to one side, in light of the opinion offered by this helpful report.
Dr Eagle noted at p 11, with regard to alcohol use disorder, the significant gains made by the offender by engaging in alcohol rehabilitation, interventions prior to his arrest on this occasion, then the immediate exposure to interpersonal stressors when released into the community, and the difficulty adjusting to the less structured environment when at large. He was recommended to return to a residential rehabilitation facility, such as Glebe House, upon his release to consolidate his coping skills. I would agree with that observation. I accept that is what this offender sorely needs.
The sentence assessment report that is included in the Crown bundle, is much more concise than the psychiatrist's report but consistent with it. He is attributed with representations here that his offending behaviour is related to his unresolved mental health issues and substance abuse. He described his long history of alcohol abuse since the age of 16. Indeed, one might take it back to the age of six, in light of the content psychiatrist's report. He is said to have represented that he used alcohol to block out negative events. He was under the influence of alcohol at the time and there is reference to his successful participation in the Glebe House Program. It is observed, and I would agree, that he has a history of violent and aggressive behaviour, appearing to be directly related to his alcohol issues.
There is reference to his anxiety disorder and substance abuse relapse prevention that was the subject of engagement with a clinical psychologist, upon having attended for a total of 23 sessions for individual therapy. He is attributed with insight into the offending on this occasion, with expressions of remorse, with empathy towards the victim. He is willing to undertake intervention as required. He is assessed with a medium to high risk of re‑offending but otherwise what is offered is consistent with the findings made by Walton J.
Further material tendered in his case came from Reverend Steve Howes, chaplain from the MRRC, who speaks positively of the offender. He said he had been welcoming and helpful, and encouraging, attending Sunday chapel service, studying his faith with Bible reading, working through the positive lifestyle program in a one‑on‑one capacity, demonstrating commitment and understanding, and good progress. He has attributed with remorse for his actions and the pain and distress it has caused to his family and others, including the victim and the community.
He has employment as a sweeper, described as a street‑way sweeper, a position of trust, with minimal supervision. He has completed courses, namely, EQUIPS Aggression Program, Domestic Abuse and Breakout. There is no institutional misconduct. There is a letter of attendance for the domestic abuse course that he undertook. There is a document with regard to self‑referral to the alcohol and other drug education counselling sessions whilst on remand. He completed the AOD Relapse Prevention Breakout Program. He is attributed with being a polite man who appears to be remorseful and willing to address his tendencies.
There is a reference from a psychologist, Ben Garber, on 12 August 2019. This refers to an admission in the period 10 to 13 September 2018 over four consecutive days because of his fear of being a target of reprisals by gang members when in custody. He was attributed with motivation when engaging with the service provided by the psychologist, Garber, with having achieved a good degree of stability and abstinence through the Glebe House Program. There is a certificate from the EQUIPS Aggression Program. There is a report from Glebe House, speaking about the progress he made and his willingness to address the issues that resulted in his decline to addiction, of subsequent criminal behaviour.
There is another report from Mr Garber on 15 April 2019, with reference to Glebe House, and then there is the breach of parole report, reflecting his satisfactory response to supervision until his offending on this occasion. There is a report from Patricia Kumar from the Centre for Addiction Medicine, listing the dates upon which he attended for assistance through this program. These were in February 2018, on the 9th, 12th, 13th, in May, on the 7th, 8th, 9th, 10th, 11th, and 14th.

SUBMISSIONS

The submissions provided by the parties in writing are largely consistent, one with the other. The representatives spoke to those on the last occasion when the matter was before me. As I noted earlier, the Crown submits this offending falls slightly below mid-range with which I agree. The factors relevant to the assessment of the matter include that this was an entirely unprovoked attack upon the victim, involving sustained violence with the use of a weapon, and the nature of the wounds suffered. The injuries are not the most serious but are contemplated by the provision. There is no victim impact statement provided but the Court would note, as the Crown submits that to experience such an attack in the circumstances such as this, in one's home, would undoubtedly be a terrifying experience.
The use of the violence is not an aggravating factor because of the inherent characteristic of the offence but the use of a weapon is aggravating and accords with s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999. The history of offending is also an aggravating factor on the application of s 21A(2)(d) of that Act. I agree with the proposition that he has demonstrated an attitude of violence and disobedience of the law, attracting appropriate weight to retribution deterrence and protection of society. The offence was committed in the home of the victim, s 21A(2)(eb). He was subject to conditional liberty by way of parole and the bond pursuant to s 9. All of those matters are relevant to the assessment of objective gravity though the antecedent history does not increase the objective gravity or the sentence that the offender is otherwise to suffer as proportionate to the misconduct, in accordance with the decision of McNaughton [2006] NSWCCA 242.
The Crown concedes that the offending was not planned or organised. The Crown concedes that there is remorse and contrition. The Crown concedes the discount of 25%. The Crown, however, argues and I agree, that there is a risk of re‑offending and that the prospects of rehabilitation upon the material presently before the Court are poor. That is not to say that the offender should be found to be insincere in his expressed wishes. He has demonstrated, in my view, a sincere desire to rehabilitate from his propensity for violence and to abstain from alcohol but regrettably, his history challenges any notion that he has good prospects for rehabilitation at this stage of his life.
The fact that he was intoxicated is of no relevance in mitigation in this case, upon the application of s 21A(5AA) Crimes (Sentencing Procedure) Act. Moreover, he is aware of the link between his misuse of alcohol and perhaps cannabis and his propensity to become violent and commit crimes such as this. It is his incapacity to abstain from alcohol which causes him his difficulty.
The Crown concedes special circumstances which will require a modest reduction in the custodial component for the sentence, with an extended period on parole.
In the submissions offered on behalf of the offender, as I said, these are largely consistent with what the Crown has already provided. It is noted that he is entitled to a discount of 25% which I have already brought to account, to be applied to the synthesised sentence upon objective and subjective material. The consent to the determination of the breach of bond is confirmed. The wounds were relatively small and perhaps they were. It is always a question of degree but as the Crown conceded, these injuries were well down the scale of injuries contemplated by this provision.
I accept that the attack was not planned or pre‑meditated, although he did go to the victim's home in the building where they both domiciled, and he took this kitchen knife with him and immediately attacked the victim in a manner described. Although I could not conclude other than it was not a planned, or in any significant sense a pre‑meditated attack, at some point he formed the intention to do what he was about and took the knife, went to the premises, knocked on the door and inflicted the wounds. I remind of the decision in R v De Simoni [1981] 147 CLR 383 and not to increase the punishment beyond that which is appropriate for the misconduct to which he has pleaded guilty.
It is conceded that the use of the knife is an aggravating factor and that the offence occurred in the victim's home. Mitigating factors, with which I agree, are that the injury was not substantial, not planned or organised in the sense contemplated within s 21A Crimes (Sentencing Procedure) Act. I accept the remorse which is advanced and the plea of guilty. The aggravating factors identified are consistent with what the Crown submitted. I am provided with a summary of his mental health, including the opinions offered by Dr Kerri Eagle, and his past suicidal thoughts. I put aside the representations of fear said to be held in relation to the neighbours for the reason that I already expressed. There is simply no evidence upon which I would make that finding.
He did cease his medication which he should have continued. There is some reference to dispute with the complainant the day before the offence. There is no evidence of that other than perhaps a reference to it by Dr Eagle. I accept that he has had challenging circumstances throughout his life, explaining his resort to substances and his misuse of alcohol which, as I have indicated, is the reason he has put himself before the Court on these multiple occasions.
In the oral submissions, the Crown urged the application of the reasoning of Smart AJ in Qutami [2001] NSWCCA 353 to which I have referred and noted that there is no evidence of the propositions he offered regarding the neighbour, the victim, and the events leading to this attack other than what is attributed to him by the psychiatrist. It was conceded by counsel that I could not make a strong finding of actual danger in relation to whatever it was that concerned him regarding his neighbours. I would add that even if I were to give him the benefit of doubt in that regard, and find that he did fear at least some aspect of the presence of his neighbour or neighbours, the Court cannot countenance conduct such as this which has resulted in the wounding of this victim. The Court could not be seen to be endorsing such resort to self‑help to address whatever concerns the offender might have had at the time, which in any event I do not accept in light of the absence of evidence before me on that point.
It was conceded that there was significance in the fact that he took the knife to the apartment and immediately embarked upon the attack.
Regarding his history, it was noted that there are various sources of information with regard to his history and his expressions of remorse and his expressed desire to rehabilitate. This I accept.

THE SENTENCE

I come to the imposition of sentence. For the offence of reckless wounding, the offender is convicted. The sentence I indicate as appropriate for this offence is one of 3 years, 4 months and 15 days, including a non‑parole period of 2 years and 3 months, upon the application of a 25% discount for the plea of guilty.
I have indicated as appropriate for the offence of assault occasion actual bodily harm a sentence of imprisonment for 9 months.
The aggregate sentence I shall impose consists of a non‑parole period of 2 years and 6 months, commencing on 28 May 2019, with a head sentence of 3 years and 9 months. He will be eligible for parole on 27 November 2021.

Endnotes

State of New South Wales v Partington (Preliminary) [2019] NSWSC 732
I have since found the decision of Mathews AJ in which she sentenced an offender of the same name for the offence of manslaughter: R v Partington [2006] NSWSC 442
This corresponds to the sentence imposed by Mathews AJ: [2006] NSWSC 442
As noted earlier the advice given to the court appears to be incorrect: see the judgement of Mathews AJ - [2006] NSWSC 442.

Amendments 08 May 2020 - Placed heading in front of para 7 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: 08 May 2020

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Judgment (13 paragraphs)

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Cases Cited (12)