Solicitors:
Director of Public Prosecutions - Crown
Legal Aid - Offender
File Number(s): 2014/00131962
[2]
SENTENCE
HIS HONOUR: Jacob John Peters today appears for sentence in relation to an offence to which he pleaded guilty at the Local Court, and pleads guilty in this court, of wounding Andrew Lotherington with intent to cause grievous bodily harm to him on 21 January 2014 at Bathurst.
This is an offence contrary to s 33(1)(a) Crimes Act 1900. It has a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years imprisonment. There are no matters on a Form 1 or "related matters" on a s 166 certificate, but there are matters for which the prisoner was charged subsequent to the events giving rise to the charge that I am concerned with, that I need to consider in the context of the case that is being conducted, particularly by the accused, or, on his behalf.
The plea of guilty was clearly entered at the first reasonable opportunity and it is agreed between the parties that the prisoner should receive a discount of 25% upon the otherwise appropriate sentence, in accordance with the guideline of the Court of Criminal Appeal from 1999 of Thomson and Houlton, to recognise the utilitarian value of the plea of guilty entered.
I have already indicated to the prisoner the sentence I propose ordering and I would ask that my introductory remarks to him form part of this judgment on sentence. The prisoner appears before me in custody, however, there have been broken periods of custody. The prisoner was granted Supreme Court bail, as I understand it, in 2014 by Hidden J, primarily, as I would understand it, to permit the prisoner to enter into a rehabilitation centre.
There is a deal of evidence before me about his entry to Odyssey House, his departure from Odyssey House, his return to Odyssey House, his return to custody at various times, and then, subsequently, his release to another rehabilitation centre in the Windsor/Richmond area. This is a centre that I have not heard of before. Not that that means anything. It is called One80TC, which has the "slogan" of "Turning Lives Around", being a type of 'faith-based' rehabilitation program.
The prisoner has been discharged from each of those programs at various times and returned to custody, as I am informed, when he appeared in the District Court in August 2015. It must be fairly said in that context that, whilst he did not continue at the respective rehabilitation centres during the remand period as I understand the matter he has not committed further offences.
I have taken into account evidence of his sister and evidence from the prisoner about the more settled lifestyle he has had within those programs or at large living with his sister since being charged in relation to the current matter. In any event, what I have just outlined leads to the point that I am informed by the Crown, accepted by the defence that as of yesterday there was six months and ten days of presentence custody, not continuous, which I am required to take into account and I certainly do.
It was agreed that I should date any sentence I impose from 5 April 2015. It was accepted in the course of the conduct of the case by learned counsel for the prisoner that, notwithstanding s 5 Crimes (Sentencing Procedure) Act 1999 ("the Act"), that nothing other than a term of imprisonment could be imposed in relation to this matter, having regard to the character of the offending and the maximum penalty and, of course, those relevant provisions relating to standard non-parole periods reflecting upon the availability of non-custodial sentences.
The facts of the matter are set out in a statement of facts which are not stated to be an agreed statement of facts but certainly are not the subject of any objection. I point out in relation to Mr Peters, as I understand the matter, that he was born in November 1991, the relevant events occurring in January 2014. This means that he was 22 at the time of the offending and he will turn, as I would understand it, 24 years of age in November this year.
There is some background that is not in the facts that I have taken into account; particularly as I find from the evidence that the prisoner, prior to the commission of the offending, had been a user of methylamphetamine, sometimes referred to in the evidence here as "ice". Most particularly the facts speak of the prisoner on 21 January 2014 being seen at, firstly, an address in Larson Street, Bathurst, when armed with a knife, acting in a, if not bizarre fashion, certainly in an aggressive fashion.
He certainly knew the occupant of the address at Larson Street Bathurst. There is some suggestion, I hasten to say in the material, amongst the people that I am referring to at this point that he saw before he stabbed the victim sometime after 11.16pm, were people from whom he purchased drugs. Although that is not made clear in the statement of facts.
The prisoner at the address at Larson Street used the knife to "stab" the mesh of a screen security door. He then moved to another address at 241 Peel Street, Bathurst - I point out, from my understanding of the matter from the charge sheet and other material, the prisoner, himself, actually lived in Peel Street at the relevant time, but at 116 Peel Street, Bathurst.
That particular premises had CCTV footage. Why it had CCTV cameras in operation I do not know. He knew the occupants of the addresses. By this stage he was "moderately to well affected by alcohol" and was in possession of a large bottle of alcohol and also was in possession of two knives, one being what is called a black-and-green paring-style knife. One of the occupants took the knives off the prisoner.
The prisoner was wearing particular clothing, set out in the facts, which was of assistance in ultimately identifying him as the attacker from CCTV camera footage obtained from the taxi cab near where the victim was standing when he was ultimately stabbed thus giving rise to the charge.
Police were contacted while the prisoner was at Peel Street because of his behaviour and what would appear to be an altercation occurring between he and one of the occupants of the premises. When he left the premises he was in view of the closed-circuit television camera and the facts state that he was heard to say while making a telephone call, I assume, on a mobile phone, "I'm going to stab someone".
The prisoner, by this stage, had collected the two knives that had been taken from him and walked towards a location in Bathurst called Rocket Street. Unfortunately, at about 11.20pm, the victim Andrew Lotherington, who was accompanying his wife, was returning home in a taxi cab and getting out of the taxi cab to go into his residence. Mr Lotherington and/or his wife were in the process of paying the fare.
The prisoner appears to have approached the taxi and screamed at the front passenger window - I take that to be not necessarily directing whatever he screamed at Mr Lotherington or his wife. The prisoner walked to the rear of the taxi, the victim, then having paid the fare, got out of the taxi cab but he walked towards the prisoner who was standing at the rear of the vehicle, this time at about 11.27pm, and said, "Mate, what's your problem?". At this point the prisoner was holding a knife in his right hand and, as the facts state, he struck the victim without warning or provocation.
It should be clearly understood I am not in any way blaming the victim. But, notwithstanding the evidence of the prisoner's conduct before and the prisoner's comment about "going to stab someone", it is unfortunate, at least for Mr Lotherington and no doubt the community, as well as the prisoner, that the prisoner was approached at that point. Because I could not conclude on the evidence available to me, that the prisoner targeted Mr Lotherington particularly beforehand.
In light of his bizarre behaviour in screaming at the passenger side of the taxi cab, I could not conclude that if Mr Lotherington had got out of the cab and walked straight to his home the prisoner would have followed him and stabbed him in a manner similar to that giving rise to the facts in the case.
It leads me to the conclusion that, notwithstanding the earlier statement of the prisoner, I am satisfied that his act in stabbing the victim was impulsive. It was, of course, without provocation. There was an absence of planning in it, although he was armed with a knife. The truth of the matter is, of course, given his earlier statement, the prisoner was a near and present danger to anyone who did confront him. As I said, that is what Mr Lotherington did, and I do not suggest for a moment in an aggressive fashion.
The knife punched into the left chest of the victim. This is of course very significant, given on the left side of the chest is to be found the heart. There is no evidence the prisoner aimed at the heart. He is not charged with intent to murder, and given his quite heavy intoxication, which I accept to be so, his physical capacity of deliberating upon a particular place was significantly impaired. But, of course, not so impaired as to prevent him forming the relevant intention for the offence.
In the Victim Impact Statement from Mr Lotherington, my view a very measured, unemotional document representing reasonably what one would expect from such a horrific experience, there is a photograph of Mr Lotherington's chest with what appears to be a scar representing the stitches imposed in the chest.
The facts state that the knife penetrated the top of the victim's stomach, narrowly missing his heart and lung. Fortunately for Mr Lotherington, he spent only two days in hospital, received sutures for the wound and apparently needed no other surgery, although gas from the lung had entered the stomach region of the victim which would cause him considerable discomfort.
The facts state that many of the matters to which I refer were captured by the taxi's closed-circuit television system. The prisoner is observed, at least his clothing, in that recording and that, ultimately, led to the identification of him as the offender. He was not identified as the offender that night or early the next morning; the prisoner left the scene and visited a family member in Kelso where he was seen to be well-affected by alcohol.
He then was put in a cab and sent to 16 Hamley Street in Bathurst where were present his sister, who gave evidence before me, and the prisoner's former partner, now the mother of his child to be born later this year. This woman, as I understand it, is older than the prisoner and has two children from other relationships.
The prisoner, when he arrived at Hamley Street, Bathurst, this is at about 2.30 am, was well-affected by alcohol and had an argument with his sister and his partner. In relation to that argument, ultimately the prisoner committed a number of offences which he was charged with later that day, that is, 22 January 2014.
Police were called to arrest him, but, at that stage, police had not made a connection between the prisoner and the unfortunate Mr Lotherington's attacker. No doubt Mr Lotherington was at the hospital at this point being treated. The prisoner apparently was not arrested until sometime later in relation to the matter with which I am concerned.
I have read the facts that relate to the matters giving rise to the charges brought for events after the stabbing. Of course, that criminal conduct is not relevant in this sentencing exercise to the objective circumstances of the offending, but the prisoner's later conduct is relevant in this sense: it shows him to be not only in a highly agitated state but very heavily intoxicated and acting, as his sister described it, "crazily", or acting "crazy"; I do not have a precise transcript of her evidence.
I note from the evidence that it would seem, in the context of the prisoner's conduct, that the prisoner, himself, was punched and kneed and pushed to the ground by both his then-partner and his sister, no doubt to try and subdue him in some way. But what is important, apart from what the sister has said in evidence before me and what the facts reveal about his uncharacteristic bizarre behaviour at his sister's, or girlfriend's, place was the observation of him by police.
When the prisoner, sometime after 2.30 am, was taken to the custody manager, he was deemed to be under the influence of either intoxicating liquor or a drug, and therefore was given a 'time-out'. He was given a time-out of six hours. But even then he was still unable to be interviewed after that period, as he was still displaying signs of impairment. It demonstrates how affected he was at the time of his presence at Hamley Street, and I am prepared to accept, reflecting upon blood alcohol absorption levels and the like, that he was similarly affected when he stabbed Mr Lotherington.
His intoxication, of course, is not a mitigating factor; clearly that is so, but, as his counsel correctly pointed-out, it is a relevant matter to take into account in assessing the factual mix and it is relevant to making the assessment I have that his conduct was, in some respects certainly uncharacteristic and impulsive and without planning, even though over a period of some hours he was armed with a knife.
The knife itself was recovered and DNA testing was undertaken and the profile of the offender was identified as being on the knife handle and it was concluded, from what I understand, that the knife that has been photographed was the knife used. It was similar in dimension to the size of the wound and that knife would appear to be some type of work knife as I would understand its purpose.
The prisoner was arrested on 1 May and interviewed. I have not seen the interview. What he admitted to related to matters that assisted in identifying him as the attacker; there is no mention of him admitting to stabbing the victim. But, then again, given his degree of intoxication, certainly from alcohol and likely from ingestion of methylamphetamine, lack of memory does not represent, necessarily, avoidance by him of his responsibility.
The prisoner has a criminal history which dates back quite a number of years for one so young. He first appeared in the Children's Court in 2005 and then has had a number of appearances. One of the problems, and I am not criticising the Crown, is the way the material came before me. The criminal history is what is called a 'bail report', it is not a proper criminal history. It basically records every appearance in court, whether convictions or findings of guilt were recorded. So, whilst that extends to quite a number of pages, there is quite a deal of repetition in it.
Primarily the offender's criminal history in the Children's Court and the Local Court representing offences relating to the management of motor vehicles and minor dishonesty. He does have findings of guilt in the Children's Court for assault occasioning actual bodily harm, an offence, as I would understand it, committed when he was 14 years of age, of which he received probation, and a finding of guilt in relation to the offence of assault in 2010, for which he was placed on a control order with a non-parole period of three months. The facts of those matters are not made clear to me.
He was not subject to probation or parole and was not otherwise on conditional liberty. In fact, one of the things I noticed about his criminal history is that after the time he appeared in the Children's Court in 2010, he had one other appearance in the Local Court for another common assault but for which he was fined a very modest amount. That was in March 2012, so up until 2014 there is almost a four-year break in his offending but for that other assault matter.
The Crown submitted (I was not quite sure if this was pressed because I do not have a transcript) that his criminal history was an aggravating factor. In my view I could not conclude his criminal history as an aggravating factor in this matter having regard to the character of the offending. He has a number of findings of guilt, that is true, some in the Local Court, mainly in the Children's Court. But I need to consider breaks in offending and I also have to factor in the reality that the crime with which he is now charged is by far and away the most serious crime he has ever faced.
Accepting his sister's evidence, his behaviour on this night and the level of violence he demonstrated was, essentially, uncharacteristic on his part and was fuelled, it would seem, by whatever he had ingested. I point out in his histories to psychologists and the Community Corrections Service he speaks of ingestion of drugs as contributing to his offending behaviour, as best he can work it out.
There is no independent evidence apart from what he said about that matter. Perhaps the police observation that he was affected by alcohol and drugs assists in that regard. But it is quite clear that he was heavily intoxicated by alcohol, judging from the observations of people who saw him earlier in the evening and his possession of alcohol at a particular time.
I have a deal of material relating to the consequences for the victim in the victim impact statement; It was a measured document. For example, there is no attempt by him to gild the lily; his summary, to quote him, is "at the end of the day I know it was a one-off non-targeted attack". So far as his effect upon his attitude and his demeanour, he wrote; "Mild effect on general happiness".
This is a considered response. However, he also reflects upon the pain suffered for a number of months after the event, although, it would seem he has physically recovered his health. There has been a longstanding emotional impact upon him which still remains; he has sought counselling, properly so, and continues to undertake counselling.
He has become very concerned about the security of himself and his wife. I do not believe he has anything to fear from the prisoner; I do not believe the prisoner presents any particular threat to him. In fact, I would be very surprised if the prisoner, other than seeing Mr Lotherington in court, would even remember what Mr Lotherington looked like. But the security of Mr Lotherington and his wife has been compromised.
It has affected his social arrangements. He is concerned that this sort of thing can happen again. They are worried about their security. I bear in mind, of course, as the Crown pointed out, this was an attack on Mr Lotherington that occurred in the presence of the wife. So it was not only harmful to Mr Lotherington and shocking to him, it would have been terribly shocking and, I would imagine, at least emotionally harmful, for the wife who had to come to her husband's aid and assist him.
No doubt she is a third party victim, so to speak, or a second party victim compromised by the prisoner's actions. Having said that, there is no evidence the prisoner was aware of the wife's presence and the extent of which he had any particular awareness of the presence of anyone other than the driver in the taxi cab is not entirely clear. At least until Mr Lotherington got out of the car.
With regard to the presentence report of Community Corrections, it reflects upon a background of dysfunction and violence. The prisoner's parents, as the history he gave to the psychologist reveals, separated when the prisoner was about four. The prisoner, for a period of time, apparently lived with his mother but then moved to live with his father. There is a reflection upon the fact that his parents lived what was described as "an antisocial" existence, and it is sad to report that his mother died of a drug overdose in 2011. In fact, the prisoner speaks, in the psychological report, of his last telephone call to her being a somewhat bitter exchange, given the fact that she had put down, for one reason or another, a dog of the prisoner she was looking after.
In any event, the prisoner moved from his mother to the care of his father and now has a good relationship with his father, although his father had been violent in the house in which he lived with his family until he separated from the mother.
The prisoner is said in the presentence report to have a very good work record notwithstanding the fact he left school in year 9 and had a somewhat dislocated education. He is a concreter and a bricklayer, he has worked in another work as well. At one point he moved to Western Australia and set-up a bricklaying business, which he was able to run for about six months before he returned to New South Wales.
He went to Odyssey House to address his substance abuse issues whilst on bail, as I mentioned. He was discharged from that program for "threatening behaviour", on the records of the Odyssey House people. He went back eventually to the One80TC rehabilitation program in 2015 as a condition of his bail, but again he was discharged from that program, as I would understand it, in August 2015, which led to his bail being refused.
He had problems with his attitude to staff. He explained in his evidence before me, which I have taken into account, that one of the problems at Odyssey House was that he was given a physical job to do that involved concreting which he enjoyed and was skilled at, but he was taken off the job with no explanation. I am prepared to accept his evidence that his departure from Odyssey House, in part, was through no fault of his but may well be a reflection upon his general demeanour.
He likes to get his own way it would seem. But, then again, he might not have been unreasonable in thinking that, in relation to aspects of the matter he was somewhat in the right. The problem he had in relation to that program, as with the other program, is that he was an inmate at the direction of the staff of that program and it would seem to me - bearing in mind he was on bail granted by the Supreme Court, he had no option but to follow the directions given to him. I will not hold it against him, though as a matter that suggests that he is not amenable to direction in the future.
I just pause for a moment.
Mr Crown, Mr Walsh, it wasn't the subject of address but it's just dawned on me as I deliver these remarks, bearing in mind I am reading from the material, I don't have a transcript and I haven't prepared a written judgment, I should give the prisoner some credit for his quasi-custodial rehabilitation program presence.
WALSH: That's right.
HIS HONOUR: The law is quite clear on this: if a person is in a residential program, as the superior courts, the Court of Criminal Appeal have held, a court may give a discount of perhaps up to 50%. When I say discount, a recognition of up to 50% of the time spent in a residential facility as a "quasi custodial setting". I'd be grateful to hear some submissions when I finish my remarks as to what period I might give credit to the prisoner, because it would require me to backdate the sentence I impose if I am prepared to do so to a date earlier than 5 April.
WALSH: Thank you.
HIS HONOUR: Do you understand what I'm saying, Mr Crown?
CLAYTON: Yes, I do, your Honour.
HIS HONOUR: It wasn't a matter referred to in the submissions, I didn't pick it up, and it's just occurred to me as I read from the presentence report that I should give him some recognition for that if it's agreed between the parties or if it's proper to do so.
In any event, I have noted what's been said about his departure from those programs in that regard. Beggars cannot be choosers, Mr Peters should understand that is true in gaol as well as in residential programs. One just has to comply with the directions, and, as the prisoner has chosen, you can leave the program if you're not happy with the way it works.
There are some other significant matters referred to in the presentence report, also referred to in the psychological report that are relevant in this matter. The circumstances are not entirely clear but it is the fact, as I understand it from the evidence, the prisoner has been present on two occasions: in 2007 and 2008, when two friends were killed, apparently in violent acts, apparently one of them, at least, was stabbed. According to the presentence report, he, in fact tried to give CPR to one of those persons who had been "knifed".
Of course, whenever one is dealing with people who are addicted to drugs or are prone to violence, one is always astonished when one reads that the person in question has been a victim of violence or has lived in a family environment where drugs were widely used and has seen the harmful effects of them. This prisoner has seen the latter because his mother has died of a drug overdose. One wonders why one would, in those circumstances where one is horrified, for example, by violence committed against the person or committed in the person's presence, resort to violence on other occasions. But it is a common fact that that occurs.
I am also advised in the presentence report that the prisoner has some security problems in the wider community. He is fearful of violence being inflicted upon him. He also is on protection in custody. I heard no details about this by way of submission or in evidence, but the presentence report states that he is on protection and he fears for his safety. I have taken that matter into account as best I can as a relevant matter, given I do not know the detail of what that protection is from official Corrective Services records.
He explained his regret and remorse for the offence with which I am concerned. He is shocked at what he did. He claimed that he was not "really a violent person". He could not work out why he did what he did and, no doubt, one of the major contributing factors was that he was disinhibited or greatly affected by the alcohol and/or drugs that he had taken.
He is at medium high risk to re-offending, which accords with the assessment of the psychologist. He has a back problem which, as I remember it from the material available to me, affected his brick-laying career.
There is some suggestion of mental health issues, in the sense that he has been treated with some medication in custody. Whether it is reactive to his current circumstances, and the like, I have no evidence clearly to demonstrate. But certainly he has a background prior to committing the offence of feelings of grief and anxiety and symptoms of depression.
I have referred to the fact that his former partner's expecting a child whose welfare, of course, he would be concerned about, although he could not be, even if at large, practically involved, it would seem, in the care of the child on a permanent basis. The Community Corrections Service Assessment was that he has been able to rise above negative influences and a disadvantaged background and he has endeavoured to address his substance abuse, both attending the rehabilitation programs that I am concerned with from the evidence, but also some rehabilitation program undertaken before he committed the current offence.
He needs to address his anger management, of course, and he clearly has unresolved issues from his past, including the "haunting residual of his own violent offending", as it is expressed in the report, asking himself why he did it. He will need assistance from Community Corrections to address substance abuse, mental health matters, and also to ensure he gets psychological intervention.
I have reports from One80TC, one in May, one in September. They do not tell me a great deal, other than the character of the program. I accept that he was involved in that program genuinely but parts of the program ultimately did not appeal to him, hence he was discharged. I have also had regard to a psychological report prepared, it would seem, whilst he was at the One80TC program. It is a very short report. It notes his poly-substance use "Disorder", but also notes "symptoms of complex trauma response", noting intrusive thoughts and nightmares related to life experiences, anxiety and depression, and the use of drugs and alcohol to manage these symptoms, which is not an uncommon occurrence.
He has symptoms that are consistent with the criteria for a diagnosis for post-traumatic stress disorder arising out of life experiences, particularly the violent death of his friends in his presence. These are findings consistent with the helpful report from the psychologist retained by the defence, Ms Talmacs, employed by Duffy Robilliard Psychologists, a respectable organisation that provides many reports for the courts, both for Crown and defence.
I have already surveyed much of the prisoner's history, some of that survey includes reference to the history given in this report. The prisoner reports to the psychologist, who prepared this report, generally good health. Although he has been knocked unconscious a few times as a child.
The way he behaved at school with the prisoner being a person with undiagnosed Attention Deficit Hyperactivity Disorder; he has trouble controlling his anger, he believed his parents suffered from anxiety and depression. If his mother was drug addicted, no doubt that is true. There was no family history of schizophrenia. He spoke of the trauma of his friends dying and various effects upon him of the use of drugs by himself, and his mother's overdose.
Ultimately the assessment on psychometric testing of the prisoner is that he is of relatively low intelligence, at the borderline range; that is, of a range of 74 to 84 with a percentile ranking of seven, meaning that on the testing, with a 95% confidence prediction, 93% of his age cohort would score equal or ahead of him. He was attentive to the task, there was no suggestion of malingering. He had a diagnostic threshold for psychological dependence and compulsive use of prohibited drugs.
He met the diagnostic criteria for post-traumatic stress disorder, particularly thought intrusion, anxiety, hyper vigilance, et cetera. His personality testing revealed a strong indication of antisocial personality problems, conduct problems, and the like. Also, with regard to the cross checking on his testing, the results indicated that he was self revealing and frank in his response.
The psychologist opines that the prisoner had some intrusive thoughts to the point of experiencing hearing voices following the use of methylamphetamine. That is consistent with a psychotic reaction to the use of drugs. He may be suffering from a developmental disability, or an acquired brain injury. He needs more testing for that to be assessed properly. He is a compulsive user or prohibited drugs. Given the severity of his dependence personality he has an unsurprising history of symptoms consistent with the effects of trauma.
The psychologist said, amongst other things, that he was most likely suffering from a mental illness currently, that is at the time of testing, namely PTSD, depression and anxiety, and had a propensity for brief psychotic episodes as a result of severe personality pathology and chronic 'ice' use.
I could not discount the fact that his bizarre behaviour on this night was consistent with one of these brief psychotic episodes, but there is no evidence of any auditory or visual hallucinations at the time. He is keen to undertake rehabilitation and he certainly needs plenty of professional assistance when released to the community.
As I said, I have taken into account the evidence he has given; I have already referred to it, and I also accept the evidence of his sister, both as to the incident on the early morning of 22 January and other matters. She noted that when he was released from the Richmond facility and spent two weeks with her before being refused bail in August he was calm, he was attentive and much changed. This reflects the benefits to him of the rehabilitation programs, despite the fact he left them, the non-use of drugs and the change in his attitude, as he has expressed in his comments to the Corrective Services Officer and the psychologist.
His learned counsel in his submissions said the violence spoke for itself and regrettably that is true. It is a serious offence. Courts and the community cannot tolerate innocent citizens being struck by people affected by drugs and alcohol, for no reason. We cannot tolerate, of course, people being stabbed out of motives of jealously and out of rage and the like. But it is particularly abhorrent for the community to consider a person like Mr Lotherington going about his business and totally unexpectedly being assaulted in the manner in which he was. Clearly that is acknowledged by what his counsel said.
His counsel referred to the psychological report and his troubled background and presentation which I have taken into account. The character of the conduct that I am concerned with, the need for drug and alcohol rehabilitation and also professional assistance which I have taken into account. His counsel submitted, and I accept, that the prisoner is entitled to the consideration of the exercise of the discretion I have to make a finding of 'special circumstances' pursuant to s 44 "Sentencing Procedure" Act. In my view, there should be a substantial period of supervision to assist the prisoner to adjust to community living and to receive direction and assistance n elation to anger management and the psychological issues that are identified, as well as drug and alcohol counselling.
With regard to the finding of special circumstances, I do not propose to fix any conditions for his parole, that will be a matter for the Parole Authority, taking into account, I hope, my remarks on sentence.
With regard to the learned Crown's submissions, he submitted that the use of the weapon was an aggravating factor and, clearly that is so. But it is to be borne in mind, of course, that the offence, itself - wounding with intent to cause grievous bodily harm - inherently, one might have thought, involves a course of conduct that would involve, usually, the use of a weapon. I can imagine such a crime could be committed by the use of fists, but usually these crimes, in my experience, involve weapons.
I believe, ultimately, that aggravating factor is very much melded into the objective facts as I have found them, and, reflected, of course, by the maximum penalty and the standard non parole period. The Crown conceded that the accused had expressed remorse and it was open to the court to determine the accused was relevantly remorseful and that there should be a discount, as I have indicated.
With regard to his prospects of rehabilitation, the Crown, properly, put that the court might approach that aspect with some circumspection. There is a high risk of re-offending and I accept that, that is reflected in the presentence report and the psychological report. The Crown also pointed to the failure of the prisoner to complete his rehabilitation.
I made some comments as to this matter in the course of those submissions and I need not reiterate them in detail, but I thought, in my assessment of the prisoner's evidence, that he showed considerable insight as to the reasons he was discharged from those programs and certainly I accept that he did not leave those programs because of a lack of interest in pursuing his rehabilitation.
Ultimately it is the case that I could not conclude that he does not have prospects of rehabilitation. I have to bear in mind, as his counsel pointed out, his youth. He is relatively young, and as this is the first significant term of imprisonment. In fact, the first term of imprisonment imposed upon him.
In sentencing him, pursuant to s 3A of the Act, I am required to take into account the purposes of sentencing. There is, of course, an element of general deterrence required in this matter and personal deterrence. There is some element of protecting the community from the prisoner; it is quite clear that if he can behave this way after the ingestion of drugs and alcohol on one occasion, he might find himself, when affected by alcohol and drugs, behaving in a similarly bizarre and aggressive fashion.
I have to make him accountable for his actions, denounce his conduct, recognise, certainly, the harm done to the victim and the community. I must ensure he is adequately punished but I am also required to promote his rehabilitation.
It was a fact that the Court of Criminal Appeal on a number of occasions has reflected upon the need to recognise the purpose of sentencing includes the desirability of reforming offenders so that they will not come back before the court, not only to enhance the situation of the offender but as a mechanism for protecting the community and enhancing the community's well being.
In R v Blackman & Walters [2001] NSWCCA 212, Wood J, then the Chief Judge at Common Law, in his judgment adopted what had been said by King CJ in the South Australian case of Yardley v Betts ((1979) 22 SASR 108 at 112-3):
"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is, to that extent, impaired. If a sentence induces or assists an order(sic) to avoid offending in future, the protection of the community is, to that extent, enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm."
With regard to the issue of general deterrence, personal deterrence and the like, I have had regard to the psychological evidence and considering matters that were summarised by McClellan CJ in the decision of De La Rosa [2010] NSWCCA 194. In that judgment, his Honour at [177] - [178] summarised a range of authorities going back over 20 years concerning the sentencing of an offender with a mental illness, intellectual handicap or other mental problems.
Whilst I accept the psychological report's findings as far as it goes, there is no contemporaneous evidence or any reference to the fact that the prisoner was being treated for a mental disability or a mental illness at the time of the commission of the offence.
What I do accept from the evidence is that the prisoner's mental state, disinhibited by alcohol and methylamphetamine, is a consequence in some respects, as one of the psychologists pointed out, to a background of anxiety, instability, trauma, which has led to the prisoner becoming dependant upon drugs and alcohol. In part to self-medicate symptoms that he has endured for a number of years.
Thus, while his mental health does not directly contribute to the commission of the offence it indirectly does so, in the way it has contributed to his dependence upon alcohol and drugs. To that extent - to a limited extent, of course, his moral culpability is reduced. But, of course, the courts have said for time immemorial that drunken people cannot hide behind their drunkenness unless it gives rise to a defence to excuse themselves from serious conduct, particularly street violence. The community is sick and tired of reading and hearing about people being assaulted or attacked for no reason under no provocation in the street by people who are affected by drugs and alcohol.
I have also factored this in to the assessment of the issue of general deterrence; it has a mild impact on that, although general deterrence is, of course, very much integral to the sentencing exercise of a crime of this character. As to his circumstances in custody, there is no suggestion that his mental condition contributes to any onerous conditions, but I have borne in mind, with little information, that he is on protection.
I do not believe the prisoner's condition, as best it can be identified on the evidence, presents a danger to the community. No greater weight need to be put on that matter, as discussed by Gleeson CJ in the decision of Engert from 1995. Of course, as McClellan CJ at CL pointed out, mental health problems of an offender may not amount to a serious psychiatric illness before they would be relevant to the sentencing process. I have taken that into account.
With regard to s 21A, I have already dealt with what I understand to be the relevant matters raised by the parties. I have already made the comment - not directly - that with aggravating factors, they are all matters of degree. Not all particular aggravating factors have the same effect upon the sentencing process and within a particular aggravating factor there will always be levels of aggravation. I think the facts in this case speak for themselves, without necessarily having to resort to s 21A(2) of the Act.
With regard to mitigating factors I find the offence was not part of planned or part of organised criminal activity. I cannot make findings in relation to his character or the likelihood of re-offending in light of what the experts say and what the facts point to, but I do believe he does have good prospects of rehabilitation with the appropriate assistance. I conclude, also, that he is entitled to a finding on balance that he is remorseful as a mitigating factor. His plea of guilty, of course, is a mitigating factor but that is represented, too, by the discount for the plea of guilty.
Ultimately the truth of the matter is, by reference to a consideration of a maximum penalty, which is significant, that a term of imprisonment of substance must be imposed. The last matter I must speak to very briefly is the issue of a standard non-parole period. This is an offence that carries a standard non-parole period of seven years and I have taken that into account. It is accepted in the submissions before me, on my prompting, I must say, that this must be regarded in all the circumstances as an offence within the middle range.
That having been said, I am required to have regard to what was said about the role of the standard non-parole period in Muldrock v The Queen (2011) 244 CLR 120, but particularly now the legislative amendments subsequently which reflect what was said by the High Court in Muldrock and s 54A(2) and s 54B(2). The standard non-parole period represents the non parole period for an offence of middle range of objective seriousness in the Table of the Division only taking into account the objective factors affecting the relative seriousness of the offence.
Of course, in the decision of Way from 2004, the then Chief Justice said in passing that the middle range of objective seriousness was "not necessarily a narrow band". Section 54B(2) provides that it was a matter to be taken into account in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence. Of course, that includes findings in relation to special circumstances.
In relation to the offence to which you pleaded guilty you are convicted. The starting point of the sentence was seven years, as I said I have given you a discount of 25%. You are sentenced to a term--
WALSH: Your Honour, if I might interrupt--
HIS HONOUR: Now, we've got to deal with a starting date, yes, of course. Sit down, Mr Peters.
WALSH: It's agreed that there is a period of eight months and 19 days spent in rehabilitation centres.
HIS HONOUR: Well, I'm prepared in the context of judgments of the Court of Criminal Appeal saying that a discount of up to 50% - I know there's a judgment of Justice Fullerton, actually, that says perhaps up to 75%, although I don't have--
WALSH: I think the - wouldn't quibble with the 50%.
HIS HONOUR: Well, I was prepared to give him a benefit of four months on that.
WALSH: Yes.
HIS HONOUR: Which is not quite 50%.
WALSH: I accept that, your Honour.
HIS HONOUR: Do you have a problem with that, Mr Crown?
CLAYTON: I'll just note that on a number of occasions he was removed from-
HIS HONOUR: Yes, I understand, I note that--
CLAYTON: No, no, I'll just note those.
HIS HONOUR: It's a bit like - how about this problem: I hear what you say but let's assume he spent six months in custody presentence and then he escaped from lawful custody and then they had to arrest him and they put him back in custody, I would still have to take into account the six months he spent in custody before he escaped, even though, owing for the fact, that he gave himself a bond, so to speak.
CLAYTON: Yes, I understand, your Honour.
HIS HONOUR: It's the fact of the time in the residential facility that is the critical issue, it's not a comment upon his conduct.
CLAYTON: Yes, I don't wish to be heard further, I just wanted to raise that.
HIS HONOUR: You have been put on the spot, but then again, it wasn't a matter that crossed my mind yesterday and it really only came to my mind as I was reflecting upon the evidence in front of me.
CLAYTON: No, I appreciate that, your Honour, my learned friend - Ms Haywood certainly assisted me in the calculations.
HIS HONOUR: But you accept the figures that have been provided?
CLAYTON: Yes, and I've managed to find the information I can and Ms Haywood has provided the remainder.
HIS HONOUR: It accords. So, I'll bear in mind that it's said that he spent eight months and 17 days in residential facilities, I'll give him a credit of four months for that.
CLAYTON: Thank you.
WALSH: Thank you.
HIS HONOUR: Yes, thank you for reminding me. I would have corrected the orders anyway. Subject to discussion. I am sorry, stand-up, Mr Peters.
You are convicted. You are sentenced to a term of imprisonment by way of non parole period of two years, seven months. I am going to have to do a recalculation: that term of imprisonment will commence on 5 December 2014 and it will expire on 4 July 2017, on which date you will be eligible for release to parole. The balance of the sentence will still be two years and eight months but that will expire on 3 March 2020. It will be a matter for the Parole Authority whether you are released to parole on that date. Just take a seat.
Have I got those dates right: 5 December 2014 as the commencement date?
WALSH: Yes.
HIS HONOUR: 4 July 2017 for the non-parole period?
WALSH: Yes.
HIS HONOUR: Right, thank you.
WALSH: Just one final matter, if I might?
HIS HONOUR: Yes, Mr Walsh?
WALSH: I know in the course of your remarks on sentence you referred to this but I'd ask you to make formal orders that he receive, whilst in custody, alcohol and drug treatment and counselling and also psychiatric and/or psychological assessment.
HIS HONOUR: I hear what you say; I am happy to have it marked that I recommend that he receive drug and alcohol counselling and appropriate medical and psychological treatment.
WALSH: Yes?
HIS HONOUR: I have got no power to order it.
WALSH: No, I understand that.
HIS HONOUR: So, I can recommend that, I cannot tell Corrective Services what to do. They'll be very pleased to know that I can't do that.
WALSH: No, we appreciate that.
HIS HONOUR: But, the truth is I am happy to recommend it. I imagine it would happen in the normal course of events anyway, but it's very much in your client's court too, don't forget. I mean, he's got to seek out some of these things.
WALSH: Of course.
HIS HONOUR: Right, thank you, gentlemen, sorry to keep you. Thank you, Mr Peters, you're excused. My associate's asking me about whether there's any provision in the relevant Act about the issue of residential care, but it's not in the Act.
WALSH: No.
ADJOURNED
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Decision last updated: 18 January 2016