R v Robinson

District Court of NSW|2020-11-20

Solicitors: D Harvey, ODPP NSW (Crown) C Murnane, Legal Aid NSW (Offender) File Number(s): 2018/341141

Judgment

Zaine Robinson, 22 years of age, appears for sentence in relation to one offence of assault causing death pursuant to s 25A(1), Crimes Act 1900 (NSW). The prescribed maximum penalty for that offence is 20 years imprisonment. There is no prescribed standard non-parole period.
The offender pleaded guilty on 6 December 2019 at the Gosford Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.
The offender has also consented to this Court dealing with breaches of two Maitland Local Court bonds.
The offender has been in custody bail refused since 6 November 2018, the date of his arrest. Accordingly, the sentence imposed today will be backdated to commence on that date.

Assessment of objective seriousness

In assessing the objective seriousness of the offending, I have taken into account the following factors: 1. The degree of violence used by the offender towards Mr Ingly. Here the violence causing the death of Mr Ingly was limited to one strike with the offender's open hand to the face or head of the victim. By that characterisation, I am not intending to suggest that the offending was not grave but, rather, it is a recognition that this offence often involves a greater level of actual violence including what are often described as king hits and/or infliction of multiple blows; 2. The circumstances in which the offending occurred. The striking of Mr Ingly by the offender was preceded by some hostile interaction which is not further specified in the Agreed Facts between the offender and Mr Ingly before the offender pushed him with his fingers in his shoulder blade. The offender then hit Mr Ingly in response to him having turned around and swung his walking stick twice at the offender. It is not suggested that the conduct of Mr Ingly in any way justified the conduct of the offender, rather, it explains the circumstances in which the offending occurred; 3. There was no premeditation. The conduct of the offender in striking the victim was a spontaneous reaction to the circumstances.
Having regard to those factors, I assess the objective seriousness as being below the middle of the range. Both the Crown and Mr Stitz on behalf of the offender agreed with this characterisation of the objective seriousness.

Aggravating factors

The Crown relied upon two aggravating factors, firstly, that the offender has previous criminal convictions and, secondly, that the offender was on conditional liberty at the time, namely two s 9 bonds imposed at the Maitland Local Court.
I do not propose to take into account the criminal history as an aggravating factor, however, I am satisfied it disentitles the offender to the leniency that would be otherwise available to a person of good character. I accept that the second aggravating factor is established.

Victim impact statement

A victim impact statement was read to the Court by Ms Erin Booth, the daughter of Mr Ingly. Ms Booth describes the significant emotional impact of losing her father in the circumstances in which his death occurred. It is clear that she continues to be impacted by the consequences of the offending in circumstances where she described herself as experiencing ongoing anxiety concerning what may happen in the future. She described her father in the following way: "My father was many things but he was not violent. He respected nature. He respect life, equality, intelligence and integrity. He was kind and dignified despite living with many hardships. He deserves to be remembered with love and respect and that is all I can do now".
I have no doubt that the loss of Mr Ingly has had a devastating effect on his family and those who know and love him. The Court expresses its sincere condolences to his family and friends.

Subjective circumstances

The offender is now 22 years of age. He has a very limited criminal history commencing in 2016 when he was dealt with for offences of take and drive conveyance without the consent of the owner for which he received a s 9 bond; a drive with mid-range PCA for which he received a fine and a further driving offence.
In 2018, he was dealt with for one offence of destroy or damage property and a further offence of resist officer in the execution of duty. In respect of each of those matters, he was placed on a s 9 bond for 12 months. It is each of those bonds that the offender breached by the commission of the current offence.
Later in that same year, he was dealt with for offences of behave in an offensive manner and entering inclosed lands without lawful excuse. In respect of each of those matters, he was fined. The offender's criminal history does not include any other serious offences of violence. As I have previously indicated, I am satisfied that his criminal history disentitles him to the leniency that would otherwise be available to a person of good character.
The offender did not give evidence during the sentence proceedings. The following material was tendered on behalf of the offender during the proceedings: 1. Exhibit 1 - Report of Dr Chew dated 24 May 2020; 2. Exhibit 2 - Supplementary report of Dr Chew, 24 June 2020; 3. Exhibit 3 - Extract of childhood medical records in relation to the offender; and 4. Exhibit 4 - Defence written submissions.
The offender's background is outlined in the reports of Dr Chew. Dr Chew assessed the offender on 21 May 2020 for one hour via audio visual link to Long Bay Hospital. He did not conduct any interviews with any other family members or persons acquainted with the offender.
The offender was born in Maitland and raised by his mother and stepfather. He met his father about four years ago. He has three siblings. His mother was a bus cleaner. The offender reported being physically abused by his stepfather in multiple ways including being burned by cigarettes.

Education

The offender reported a history of learning difficulties throughout school for which he received additional one-on-one tutoring during primary school. He described not performing well at school whilst still being able to read and write. He reported working as a concreter for one year prior to moving to be with his girlfriend. He reported that he was in a relationship with his girlfriend, Georgia, for four years. They have one son together who is now 2 and a half years old.

The offender's circumstances at the time of the offending

The offender reported that at the time of the offence, he had gone to the shops in search of medication for his son. He stated that he had drunk some pre‑mix bourbon and the altercation began after Mr Ingly had "barged" into him.

Substance use history

The offender reported commencing his use of alcohol in Year 9. He stated that he would consume approximately four pre-mix Bourbon drinks per day. The offender reported that he had booked into an alcohol detox in Hamilton but did not attend.
He commenced using cannabis in Year 9. He stated that he would consume one joint per day and became a regular user from Year 10. The offender reported that he had used ice for a few months while he was 18 but did not continue. He denied any other illicit drug use.

Medical and mental health history

The offender reported a long history of psychiatric and medical issues from birth. He reported that he was transported from Maitland to John Hunter Hospital hypoxic after the umbilical cord was wrapped around his neck.
In relation to his family history, the offender reported that his father suffers from schizophrenia and he has a brother with ADHD. He reported that as a child he was treated for a number of conditions by his paediatrician and was diagnosed with autism spectrum disorder and attention deficit hyperactive disorder.
When in Year 3, the offender began treatment with stimulant medication including Dexamphetamine, Ritalin and Concerta. This continued until the offender ceased treatment of his own accord at the end of high school. The offender reported experiencing ongoing symptoms consistent with these conditions including disinhibition, difficulty concentrating, inattention, poor impulse control and difficulties relating to people. The offender denied any symptoms consistent with a significant mood or psychotic disorder, as well as any thoughts of harm to himself or others.
The offender told Dr Chew that he was extremely regretful of his actions and extremely sorry for reacting in that way, noting that he "should have just walked away". The offender also stated that he accepted responsibility for Mr Ingly's death. In the opinion of Dr Chew the offender was very remorseful for his actions and had accepted responsibility for Mr Ingly's death.

Psychiatric assessment

In the opinion of Dr Chew, the offender displayed no abnormal thought disorder. His mental state was stable. Dr Chew was of the opinion his cognition was consistent with a mild learning disability. Dr Chew stated as follows: "Mr Robinson has a number of significant psychiatric diagnoses including a probable developmental disability characterised by autism spectrum disorder and learning difficulties. Additionally he has a long history of ADHD which appears to continue into adulthood. He also has a significant substance use disorder. At the time of the offending behaviour he was suffering from these conditions. Additionally he was affected by substances, in particular cannabis, alcohol. This all contributed to his offending behaviour, in particular making him more impulsive and disinhibited. These conditions also make custody more difficult and harsh for this young offender in his first incarceration".
In relation to the asserted causal connection between the offender's mental health issues, substance use issues and the offending, Dr Chew stated as follows: "It is my view that both the psychiatric diagnoses and the substance abuse contributed to the offending by a number of mechanisms including increasing impulsivity and disinhibition. It is difficult to tease out the differing proportions of contribution, however it is my opinion that they are both significant".
In the opinion of Dr Chew, the offender would benefit from treatment including (a) disability support from therapy; (b) alcohol and drug therapy and rehabilitation; and (c) consideration for pharmacotherapy for ADHD.
In the opinion of Dr Chew, treatment of the offender's alcohol use disorder would reduce his risk of reoffending.
Dr Chew was called to give evidence during the sentence proceedings for the purpose of cross-examination by the Crown. Dr Chew gave evidence that after the preparation of his two reports, he had received medical records relating to the offender's childhood (Exhibit C). The contents of those medical records can be summarised as follows: 1. Medical documentation from Maitland Hospital outlines the medical complications experienced by the offender at birth and reported to Dr Chew in particular severe perinatal asphyxia as a result of the umbilical cord being wrapped around his neck, hypertension and acidosis. 2. A letter from Dr Peter Donald, paediatrician, dated 8 May 2008 noted the offender's positive response to Ritalin prescribed in March 2008 when the offender was 9 years old, including improvements in the offender's behaviour and academic performance at school. 3. A letter from Dr Nadine Ogle, paediatrician, dated 13 August 2013 when the offender was 15 years old, outlined poor behaviour and academic performance by the offender at school. She noted symptoms reported by the offender whilst taking the medication Strattera, including poor concentration, suppressed appetite and possible sleep apnoea. Ms Ogle stated that the offender fulfilled seven out of the eight criteria for oppositional defiance disorder. She also noted the offender's weight was in the third lowest percentile. 4. A letter from Dr Ogle dated 20 November 2013, again whilst the offender was 15 years old, outlined positive improvements in his behaviour at school after taking the medication Strattera. She noted that the offender's NAPLAN results were below average in reading, writing, language and numeracy. She also noted that the offender's weight was in the third-lowest percentile and his height was in the first lowest percentile for children of his age. She also stated that the offender refused to participate in counselling. 5. A letter from Dr Ogle dated 19 February 2015 when the offender was aged 16 years old, stated that the offender self-ceased his mediation soon after an appointment in April 2014 and did not experience any major side-effects. She also noted again that the offender's weight was in the third lowest percentile for children of his age, being 16 years. 6. A referral letter from Dr Ahuga dated 7 February 2015 stated the offender suffered from ADHD and ADD.
In his evidence during the sentence proceedings, whilst Dr Chew agreed that the medical records relating to the offender's childhood did not include a formal diagnosis of autism spectrum disorder, he was of the opinion that the presentation of the offender as recorded in the medical notes was consistent with autism spectrum disorder. Further, Dr Chew gave evidence that the history given by the offender during his assessment was also consistent with a diagnosis of autism spectrum disorder.
In relation to his diagnosis of adult ADHD, Dr Chew gave evidence that he relied upon the offender's report of his symptoms and also the childhood history of ADHD. Dr Chew agreed in cross-examination that adult ADHD would result in a greater risk of re-offending if left untreated.
In relation to the offender's childhood medical background, Dr Chew gave the following evidence: "I think it's very important to note with Mr Robinson's case that - and I think it's quite clear in the medical records that I know that sometimes we try and put diagnostic labels on developmental syndromes but I think with his history, I mean he had a very severe state of birth asphyxia, the umbilical cord was wrapped around his neck, it's almost certain that he had a little bit of hypoxia of his brain at a very, very young age and the sort of syndromes that develop out of that are, they're a little bit heterogeneous and I think we try and put labels on some of these things. I think the label that I put that best fits, was adult ADHD-type syndrome but I think no matter what's going on, I think he has some sort of developmental neurological dysfunction. Q. Sorry, you said of neurological? A. Of neurodevelopment dysfunction the genesis of which is likely to be birth asphyxia, essentially lack of oxygen to his brain when he was being born. Q. And I think you acknowledge in your report you said cognitively - this is paragraph 29 of your report, is consistent with a mild intellect, a mild learning disability? A. Yes and that would be my view. Usually psychiatrists don't conduct the formal testing, a neuropsychologist would have to come in with the test but my clinical impression over the interview was that it was consistent with some dysfunction."
In re-examination, Dr Chew gave evidence that the medical records relating to the offender's childhood (Exhibit 4) were helpful in confirming his previous diagnoses.

Submissions on behalf of the parties

The Crown relied upon written submissions supplemented by further oral submissions. Mr Stitz on behalf of the offender also relied upon written submissions supplemented by further oral submissions. I have taken those submissions into account in determining the appropriate sentence.
The Crown relied upon the following authorities: Pattalis v R [2013] NSWCCA 171 and R v Wood [2014] NSWCCA 184. In R v Wood, Justices Price, Garling and Bellew stated as follows at [65]: "This Court has observed on many occasions that 'single-blow' manslaughter cases (by unlawful and dangerous act) are not rare in this State and need to be addressed by sentences that reflect the element of general deterrence: R v Carroll [2010] NSWCCA 55; (2010) NSWLR 45; Loveridge at [103]. The need for general deterrence is not confined to alcohol fuelled violence but includes gratuitous, unprovoked violence on the streets, whether in city centres, or residential areas. People have the right to expect that their streets will be safe: Attorney General's Reference No 60 of 2009 (Appleby and Ors), [2009] EWCA 2693; 2 Cr App R (S) 46 cited with favour in Loveridge at [209]-[210]; R v McKenna [2007] NSWCCA 113 at [2]. This expectation gathers importance as the number of aged and vulnerable persons in our community increases. It must be clearly understood that violence towards the elderly will not be tolerated. In the circumstances of the present offence, a strong element of general deterrence was called for".
The Crown also relied upon a number of Queensland authorities concerned with a similar Queensland offence provision (see Exhibit C).
Mr Stitz, on behalf of the offender, relied upon the following authorities: R v Yardley [2019] NSWCCA 291 and R v Garth No 2 [2017] NSWDC 471.
I also provided the parties with the authority of R v Johnson (No 5) [2017] NSWSC 1169.
It was accepted by the parties that none of the authorities are directly comparable with the current offending for a variety of reasons: a different principle offence with a greater maximum penalty; differing objective seriousness; and differing subjective circumstances. Rather, the usefulness is limited to establishing the broad range of sentences imposed in a variety of circumstances. I have considered each of those authorities.

Prospects of rehabilitation

Any assessment of the offender's prospects of rehabilitation must necessarily be guarded at this stage in circumstances where his ADHD and substance-use disorder remain untreated. The likelihood of rehabilitation will, to a large extent, depend upon him committing to treatment for his ADHD and substance use disorder.
I am satisfied the offender's future is not without hope. He is young, he has the ongoing support of his mother and girlfriend, he has a very young child which I expect will be a significant motivating factor for him to pursue rehabilitation upon his release from custody.
The Court is hopeful that the offender accepts any guidance and assistance that is offered to him upon release from custody so that he can look forward to a much more positive future. Should the offender engage in treatment for his ADHD and substance use disorder, I am satisfied he is unlikely to reoffend.

Remorse

The offender expressed remorse and acceptance of responsibility for his offending to Dr Chew. I give such evidence limited weight in circumstances where it was not on oath (see R v Imbornone [2017] NSWCCA 144, Wilson J at [57]).

Relevance of offender's mental health

The relevant principles in relation to the relevance of an offender's mental health on sentence are enunciated in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [177].
Having regard to the evidence of Dr Chew, I am satisfied there is a causal connection between the offender's mental health issues and the offending. Dr Chew was of the opinion that his psychiatric diagnoses and substance abuse were "both significant" in relation to contributing to the offending by increasing impulsivity and disinhibition. I note that self-induced intoxication cannot be taken into account as a matter of mitigation (see s 21A(5AA), Crimes (Sentencing Procedure) Act 1999 (NSW)).
In cross-examination Dr Chew gave evidence that the offender's ADHD alone would have increased his impulsivity. In such circumstances, I am satisfied on balance that his ADHD would have contributed to the offending, even without the contribution of alcohol and/or drugs. Accordingly, I am satisfied the offender's moral culpability is reduced and I propose to moderate the otherwise appropriate sentence.

COVID-19

The offender has been in custody since 6 November 2018. From March 2020 the circumstances in custody changed significantly as a consequence of the COVID-19 pandemic. Most importantly, all personal visits were suspended and replaced with AVL visits. I accept in such circumstances for that period of time, custody has been more onerous for the offender.

Special circumstances

It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and parole period pursuant to s 44(2), Crimes (Sentencing Procedure) Act on the basis that it is the offender's first time in custody and he will need a longer period on parole to assist him upon release in relation to treatment for both is ADHD and substance use issues.
The Crown conceded it was open to the Court to make a finding of special circumstances. I am satisfied special circumstances are established and I do propose to vary the statutory ratio between the non-parole period and the parole period.

Determination

In determining the appropriate sentence I have taken into account s 3A, Crimes (Sentencing Procedure) Act and the purpose of sentencing.
Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (see s 5(1), Crimes (Sentencing Procedure) Act).
I have taken into account the maximum prescribed penalty, the objective seriousness of the offending and the offender's subjective circumstances.
Mr Robinson, in relation to one offence of assault causing death, you are convicted.
You are sentenced to a non-parole period of 2 years and 5 months to date from 6 November 2018 and to expire on 5 April 2021 with a balance of term of 2 years and 5 months to expire on 5 September 2023. The total term of the sentence is 4 years and 10 months. The starting term of that sentence was 6 years and 6 months which I have discounted by 25% for your plea of guilty.
You will be first eligible for parole on 5 April 2021. I have found special circumstances.
In relation to each bond imposed on 23 July 2018 at the Maitland Local Court, I find the breach of each bond proved.
I revoke each bond and the offender is sentenced to a community correction order for a period of 12 months to date from today, 23 November 2020, to expire on 22 November 2021.
The standard conditions of the community correction order apply, that is you must not commit any offences and you must appear before the Court if you are called upon to do so.

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: 10 February 2021

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Judgment (20 paragraphs)

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