R v Pink

District Court of NSW|2024-02-12

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Offender) File Number(s): 2022/357051

JUDGMENT

Samuel Ellis ("the offender") pleaded guilty in the Local Court to an offence of recklessly wounding Corey Draper contrary to section 35(4) Crimes Act 1900.
The maximum penalty for the offence of reckless wounding is seven years imprisonment. There is a standard non-parole period of three years imprisonment. Both the maximum period of imprisonment and the standard non-parole period serve as statutory guideposts for the sentence.
The Crown submitted and Mr Pickering conceded, that no other penalty other than full-time gaol is appropriate in this case. Bearing in mind the seriousness of the offending, I agree with that submission and concession. I have determined that the section 5 threshold has been crossed, and no other penalty other than prison, and full-time prison, is appropriate to properly reflect the seriousness of the offence and the principles of sentencing.

Facts

A statement of agreed facts was tendered. It sets out the factual basis of the plea of guilty. In brief summary, the facts are as follows: 1. At about 8 AM on 26 November 2022. The offender went to an apartment at Brighton Le Sands with his girlfriend. The victim was at the apartment. 2. Either inside or just outside the apartment the offender and the victim began to argue about the victim's contact with the offender's girlfriend from an earlier time. The argument resulted in the victim, saying to the offender, "Do you want to have a go then". 3. The offender picked up a knife and an altercation occurred between him and the victim. During the altercation the offender inflicted several injuries and a wound upon the victim. 4. The offender and his girlfriend left the apartment. 5. The victim was in shock from the stabbing and noted a lot of blood. Each time the victim attempted to breathe he could feel air coming in and out of his chest. 6. The offender and his girlfriend were seen shortly after acting in an erratic way. 7. At about 8:30 AM calls were made to 000 with a request for an ambulance to attend the apartment as someone had been stabbed. The paramedics arrived and treated the victim. There was a wound about 2 cm wide on the right-hand side of the victim's chest. There was air coming from the wound. The victim also had some lacerations on his right hand. The victim was taken to St George Hospital. 8. The victim's injuries were summarised as follows: * A right anterior chest wall stab wound 3 cm in length - penetrates to and extends into the pleura. * Moderate subpectoral haematoma, bleeding subpectoral small artery and several small cutaneous and subcutaneous vessels. * Knife has gone clean through third rib, largely detached except superior 2 mm of the rib, laceration extends into the fourth rib below. * The progress notes also refer to the victim suffering a small laceration to his right index finger, and small superficial abrasions on his hands, and grazes to his hands and face. 1. At about 11:00 AM on 26 November 2022, police attended the offender's home address. The offender initially refused to allow police entry to the unit. After an extended period of negotiations, the offender emerged from his unit and was placed under arrest. 2. A message written on the wall of the apartment stated "MIN 469793 pls babe don't leave me I love my phone is here look it keep it on." A further message on the wall read, "Babe they raid and they got me". 3. At Mascot police station the offender participated in multiple forensic procedures including a buccal swab. The offender was offered the opportunity to participate in an ERISP. However, he declined. 4. Various forensics procedures were carried out and analysed.

Seriousness of offending

This was obviously a serious example of offending although clearly not the most serious. In matters involving wounding, the nature of the injury or injuries caused, will play a significant part in determining the seriousness of the offence. Having said that, the manner in which the injury was inflicted, the reason for the infliction of the injury, and the surrounding circumstances, are also relevant in determining the seriousness. [1]
In this case it is clear that the injury was serious. The knife went cleanly through most of the third rib with the laceration extending to the fourth rib. Other than what was set out in the agreed statement of facts though, there is very little evidence about the seriousness of the injury including whether it has resolved completely or whether there will be ongoing issues. It is therefore somewhat difficult to determine the exact seriousness of the injuries, however there is no doubt it is a serious example of a wounding.
Although the statement of facts referred to the fact that "the offender inflicted several injuries and wounds upon the victim", the Crown quite properly conceded that there was only one puncture wound from a single strike of the knife. The victim had other injuries on his hands, which were consistent with a struggle with the offender.
The circumstances in which the offence occurred are not entirely transparent. However, it is clear that an argument arose between the victim and the offender over the offender's girlfriend. The offender, in his comments to the psychologist said that he found out that the victim had been messaging the offender's girlfriend and that, "I felt like he (the victim) was going to take my girl off me. I thought I was going to get abandoned." While the statement of facts does not set out the exact argument between the victim and the offender, what is set out in the statement of facts does support that comment by the offender to the psychologist. I am satisfied on the balance of probabilities that that is how the offender felt. In coming to this finding I am conscious of the fact that the offender's comments to the psychologist are out of court and untested.
The argument between the offender and the victim led the victim to say to the offender "Do you want to have a go then". It's at that point that the offender picked up the knife and the altercation developed between him and the victim.
I accept the defence submission that the offender's act of taking up the knife appears to have been spontaneous, there is no evidence of planning or organisation, and that reduces the objective seriousness.
The defence submits and the Crown concedes that, as a result of the argument and that comment by the victim, there was some provocation that would serve to mitigate the offending. The defence properly concedes however, there is a real limitation to how much that provocation would mitigate the offending, bearing in mind the violent response from the offender, regardless of any provocation, was completely unjustified.
The offence involved the use of a weapon. That is an aggravating factor. While many wounding offences might involve the use of a weapon it need not do so. It is not an element of the offence, and it aggravates the seriousness of the offence.
The victim must have been terrified by what happened. The offender expressed it well himself when he stated to the psychologist "I can only imagine what he has gone through. He probably thought he would die."
The facts are unclear whether the offence was committed inside or just outside the apartment. I note the Crown does not assert, quite properly, bearing in mind they have the onus to prove any aggravating feature beyond reasonable doubt, that the aggravating feature under s 21A(2)(eb) is present.
The offender committed the offence while on conditional liberty. He had been granted bail for a stalk and intimidate offence shortly before committing this offence.
The Crown commenced by submitting that the seriousness of this offence fell above the mid-range. Having said that, the Crown, again quite properly, conceded that was largely based on the severity of the injury. The defence submitted the offence was below mid-range. I have, as a result of the matters I have set out above, concluded that the seriousness of the offending was around the mid-range. This is of course taking into account the limited mitigating feature of provocation and the spontaneity of the act.
At the end of the day there is no doubt this type of violence needs to be denounced and denounced strongly. Nothing other than full time custody will be an adequate punishment for violence of this nature.

Bugmy considerations

The defence relied on a report from psychologist Ms Bennett. Ms Bennett sets out the offender's family history. The history given by the offender was out of court and untested. I therefore approach accepting what has been said with a degree of circumspection.
Having said that I accept, to the relevant standard, that the offender's upbringing was marked by abuse, neglect, abandonment, exposure to domestic violence and drug use. The history he provided was not really put in issue by the Crown and is consistent with his drug addiction and criminal record.
The offender's mother who gave birth to him when she was only 15 years of age, had a significant drug addiction which affected her parenting. His mother would leave him under the care of her boyfriends and other people. The offender stated that there were "some sick ones" that would "bash us". The offender was neglected and given inadequate food.
The offender was removed by the Department of Communities and Justice when he was about nine years of age and placed with his biological grandmother. Unfortunately, it appeared that his grandmother had mental health problems and struggled to parent him. His grandmother would self-harm on numerous occasions which the offender witnessed.
The offender stated that he was sexually assaulted at the age of approximately 10 years. He further states that he is involved in court matters relating to those assaults. I make no findings in this sentence about those matters. I am satisfied even without making a finding in relation to sexual assault, that his upbringing was marked with deprivation.
The offender was returned to his mother who then asked him to leave the house. The offender was homeless for some duration from 15 years of age. The offender, completely unsurprisingly, recalled feeling rejected and abandoned during those years, engaging in frequent drug and alcohol use to manage his depressed mood and as a maladaptive way of connecting with peers.
The offender, again unsurprisingly, had challenges with his learning throughout schooling. Due to his unstable family environment, he attended 15 different schools. He was bullied and teased throughout his schooling.
The offender started to smoke cannabis from the age of 10. He engaged in alcohol abuse from 15 and then started using ice and Xanax. During his most recent time in living in the community he began using heroin.
At the time of the offending, he was using heroin, ice, Xanax, and Rivotril on a daily basis. He used drugs to not be depressed. He stated that when he is on drugs, "I don't feel like a piece of shit". He has overdosed on five occasions which has required hospitalisation.
Again unsurprisingly, the offender has had difficulties with mental health. He described a history of behaviour suggesting the presence of maladaptive personality traits. He described a long history of concerns around abandonment, particularly in his romantic relationships. The offender engaged in a suicide attempt when he was 16 years old. This was in the context of homelessness and feeling depressed and rejected by his family.
Ms Bennett opines that the offender experienced separation and abandonment from his parents. He was exposed to physical abuse, emotional abuse, neglect, and domestic violence while under the care of his parents. He was also exposed to additional adversities that made him vulnerable to the development of mental health and personality issues, as well as substance use problems in adulthood.
Ms Bennett opines that the offender's involvement in the current offence can be understood in the context of his drug use, his underlying impulsivity, and emotional instability, as a result of his childhood background. Ms Bennett states that the offender's borderline personality disorder, and symptoms of depression and anxiety, contributed to his poor judgement and disregard for the safety of the victim.
Defence counsel conceded that the De La Rosa [2] principles don't play an independent role in this sentence, rather, the offender's mental health issues are to a certain extent subsumed within the Bugmy [3] principles.
I am satisfied that the offender's exposure to domestic and family violence, exposure to parental substance abuse and introduction to drugs at an early age, his homelessness and social exclusion, all contributed to his mental health issues, together with his fear of abandonment, contributed to him reacting with violence.
In those circumstances, I consider that the offender's moral culpability is reduced. The circumstances of deprivation that marked his upbringing mitigates the sentence I intend to impose because his moral culpability is less than the culpability of an offender whose formative years have not been marred in that way. [4] The effects of profound deprivation do not diminish over time and should be given full weight in determining the sentence in every case. It remains relevant even where there has been a long history of offending, [5] as there has been for this man.
While specific and general deterrence obviously still play a role in the sentence of an offence of this seriousness, I have moderated the weight to be given to both in favour of other purposes of sentence, in particular, his rehabilitation. [6]

Criminal history

The offender has a long history of engaging in criminal activity. His record extends over the last 16 years. While it is a long and unenviable history, it does not aggravate the offending but it does disentitle the offender to leniency. It has also to be seen in the context of his deprived upbringing.

Subjective factors

The offender was born on 18 January 1991. He is currently 33 years old and was 31 at the time of the offending. The offender's background and subjective circumstances are set out in the report of Ms Bennett, a lot of which I've already referred to in detail.
The offender has four children from two separate relationships. The children are aged 13, nine, six, and three. The offender has limited involvement with his children, with the two youngest being formally removed by authorities. The offender had very limited schooling up to year eight. He has had some brief periods of employment working in carpet laying and maintenance.

Prospects of rehabilitation

As I have stated, the offender has a very long criminal history. He has served sentences of varying types, a number of which were obviously aimed towards his rehabilitation. He has not taken those opportunities when presented to him. That in itself would make any assessment of prospects of rehabilitation extremely guarded.
That fact that the offence was committed while on conditional liberty also casts some doubt on the offender's prospects of rehabilitation. [7]
Having said that, there do come periods of time in an offender's life where they become aware of the opportunities they have squandered. With the consent of the offender's counsel, and the belated consent of the Crown, I spoke with the offender about his rehabilitation.
He unfortunately was in maximum security in Goulburn for most of his remand and did not have the opportunity to access rehabilitation programs. He has however, now been on the methadone program for approximately 14 months. While I have not seen the offender before, it seemed clear that his presentation and his clarity of thought very much pointed to an offender who has not been using illicit drugs, and who is keen to remain abstinent.
Further, his expressions of remorse, which I accept, in the report of Ms Bennett also point in that direction. Unfortunately though, it is a long road ahead. While he does have some support from his former partner there is a lack of social network to give him support when he leaves custody. Hopefully though, this is turning moment for him. Bearing in mind his history and previous opportunities I could not say that he has good prospects of rehabilitation. Likewise, I could not say he is unlikely to reoffend.

Special circumstances

I do find special circumstances in this case. I find special circumstances noting the necessity of assistance the offender needs while on parole. The offender stated that he wanted to attend a residential rehabilitation program and although I cannot order that that occur, I would very much recommend that to Community Corrections. The offender's long history of mental health issues, together with his drug history and the necessity of obtaining assistance while on parole, necessitate a much longer than normal period of time on parole.

Sentence

Taking into account the 25% discount, I sentence you to the head sentence of 2 years and 6 months, and a total non-parole period of one year and five months. The sentence is to date from 26 November 2022 and expire on 25 May 2025. The non-parole period expires on 25 April 2024, and I direct your release to parole on that day.

Endnotes

Stevens v R [2017] NSWCCA 216 at [40].
(2010) 79 NSWLR 1.
Bugmy v The Queen (2013) 249 CLR 571.
Ibid at [40].
Ibid at [42] - [43].
IS v R [2017] NSWCCA 116.
R v Tran [1999] NSWCCA 109; R v Fernando [2002] NSWCCA 28.

Amendments 22 February 2024 - Case title amended 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: 22 February 2024

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