R v Selman

District Court of NSW|2022-10-06

Office of the Director of Public Prosecutions (Crown) Criminal Law Group (Offender) File Number(s): 2021/00207424

INTRODUCTION

Mahmoud Selman appears today for sentence upon a charge contrary to s 35(4) Crimes Act 1900 alleging that he: On 18 July 2021, at Bass Hill in the State of New South Wales, recklessly wounded Masri Eliwa.

PENALTY

The offence carries a maximum penalty of imprisonment for seven years and there is a standard non-parole period specified for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 of three years imprisonment.

FORM 1

The offender asks that when I impose sentence I bring to account an additional offence contrary to s 16(2) Law Enforcement (Powers and Responsibilities) Act 2002 alleging that he: On 20 July 2021, at Bass Hill in the State of New South Wales, being a passenger in or on a vehicle failed to disclose the identity, or as much of the driver's or other passengers' identity as was known to him, when required to do so by a police officer.
The offence to be taken into account has a maximum penalty of 50 penalty units or 12 months imprisonment, or both. The conduct upon which that charge was preferred is connected to and was committed in the circumstances upon which the principal charge has been preferred.

THE PRINCIPAL OFFENCE

The offence upon which sentence is to be imposed found in s 35(4) Crimes Act 1900 is expressed thus: "A person who - 1. wounds any person, and 2. is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence."
The phrase "reckless wounding" should be understood in terms of the provision creating the offence, namely, that there is the act of wounding which must involve intention, with recklessness as to the consequence of that conduct, that is to say, recklessness as to the risk of causing actual bodily harm in the infliction of the wound. This implies that the offender adverted to the risk of that outcome but nonetheless went ahead and performed the act with which he is charged.

PRE-SENTENCE CUSTODY

The offender spent four days in custody for this offence, and thus the sentence which I impose today, bringing to account that pre‑sentence custody, will commence on 4 December 2022.
To relieve the stress from the suspense of awaiting the outcome of this judgement at its conclusion, I should indicate that notwithstanding the careful and thorough submissions put on behalf of the offender I cannot come to the conclusion that a sentence of less than two years is appropriate in this case. In any event, the conduct is of such seriousness it is in my view not appropriate to resort to the provisions allowing for the imposition of an intensive correction order. The sentence I have settled upon will involve a period of full-time custody bringing to account a finding of special circumstances.

THE PLEA

The offender pleaded guilty early in this process in the Local Court from whence he was committed to this Court for the proceedings on sentence. Thus, s 25D Crimes (Sentencing Procedure) Act 1999, invokes a discount of 25% for the plea's utilitarian value to be applied to the sentence that would have otherwise been imposed. The plea of guilty is also evidence of contrition and remorse which I have brought to account. The offender confirmed that he pleaded guilty in the Local Court when the matter was first before me on 6 October 2022 and adhered to that plea of guilty before me.
There is as I said the inclusion on a Form 1 of the additional offence. The offender confirmed his wish that the offence be taken into account and admitted that he is guilty of it.

BAIL CONDITIONS

I also brought to account in the assessment of punishment that he was subject to bail conditions which constrained his liberty. These commenced in the Local Court on 21 July 2021 when a magistrate imposed conditions requiring him to report each Monday, Wednesday, and Friday between 8am and 8pm. He was to reside at a nominated address and not be absent from those premises between the hours of 9pm and 5am.
On 27 October 2021 a magistrate reduced the reporting conditions to Monday and Friday and left the curfew in place and on 2 February 2022 another magistrate removed the curfew entirely but maintained the reporting required each Monday and Friday. Then on 14 May 2022 the bail was continued by another magistrate in those terms with reporting required each Monday and Friday and the obligation to live at a different address specified in the bail conditions.
I have drawn that information from JusticeLink.
There has been accordingly a measure of constraint, modest though it might be, upon the freedom of the offender to move about in the night-time hours for some of the time. I brought that to account in the assessment of punishment.

THE FACTS

The facts are agreed. The document in which they are set forth was signed by the offender on 15 June 2022 and on behalf of the Office of the Director of Public Prosecutions on 14 June 2022. Although there is a place specified for a signature by the offender's lawyer it appears that whoever was representing him at that time did not take that step.
The offence occurred on 18 July 2021 outside of Bass Hill Plaza shopping centre. The offender was aged 20 at the time of the offence. He would have reached his 21st birthday that year. The victim was aged 36 at the time of the offence.
Ultimately the crime with which the offender is charged occurred in the third of three altercations that took place that day.
In the first of those about 1pm the victim was driving his vehicle in the direction of a pizza shop located next to the entrance of the Bass Hill Plaza. The shop façade faces the car park area and is located to the right of a pedestrian crossing directly in front of a number of designated disabled car parking spots.
The victim stopped his vehicle at the pedestrian crossing. The offender who was crossing with an unknown male began to swear and stare at the victim. The offender continued to cross in the direction of the pizza shop and continued to stare at the victim. The victim did not know the offender nor the unknown male with whom he was crossing the pedestrian crossing.
Whatever the manner of driving was at that point is not further described. It is not said in the statement of facts that the driving of the victim was in any way wanting. Nonetheless, it caused a response from the offender who, according to the facts, swore at the victim and stared at him.
The victim alighted from his vehicle and approached the offender and said words to the effect, "What's wrong with you? Why are you swearing?" The offender replied, "Well, why didn't you stop? You were going to hit us." The victim said, "I already stopped. I was driving so slow. Are you okay?"
Thereupon the offender hit the victim and an altercation between them ensued. At some point the offender's friend attempted to separate the two. Another man spoke to the victim and said, "Come on, man, come, he's just a little kid." The first physical altercation came to an end. The victim returned to his car and the offender went into the pizza shop.
Closed-circuit television was accessed and that revealed the offender inside the pizza shop behind the counter playing with a flick-knife which he had taken from his right pocket. The offender extended and contracted the flick‑knife a couple of times. There is a still image in the statement of agreed facts with the caption "The Offender in Possession of a Flick-Knife". There is what appears to be a silver-coloured blade extending from the right hand of the offender. The part which is displayed in silver or white is about the same length of the portion of the offender's hand that is visible.
About four minutes later the victim entered the pizza shop. The offender was still behind the counter but the knife could not be seen. A second image in the statement of agreed facts shows the victim entering the pizza shop. The victim told the offender to relax and that he was only there to make an order. An attendant in the shop, not wanting any trouble, asked the victim to leave and to come back in about 15 minutes. The victim did so and entered the shopping centre, deciding to buy some bread and milk from Woolworths.
Inside the pizza shop the offender assisted a customer at the counter, before closed-circuit television images depicted the offender "mulling" around the entrance of the shopping centre. I am not quite sure what is intended by the use of that word. "Mulling" means to think deeply about something. It is not entirely clear what was intended by that word in the statement of agreed facts but not a great deal turns upon it.
A few minutes later the offender and an associate ran into the shopping centre and then back out. The offender did this a second time and then exited a short time later. The offender remained at the entrance to the shopping centre and at one point a person appeared to encourage him to move away but he remained in the vicinity. The significance of that paragraph is not entirely clear. It carries the implication that the offender was in that location watching for the victim but it is not a matter that was addressed before me. It was not explained. There is no evidence to explain what the offender was about at that point and so I do not draw that implication as a matter upon which to determine sentence in this case.
Then there was a second altercation. About 1.15pm the victim approached the exit of the shopping centre, now with his uncle whom he had planned to meet at the plaza to eat pizza. At that point the victim had already decided that they would eat elsewhere. All at once the offender's friend ran towards the victim followed by the offender. There they engaged in a second physical altercation with the victim. Closed-circuit television footage depicted the victim trying to punch the offender and the offender's friend. Seconds later, the victim's friend is involved in a physical altercation with the offender's friend.
About 30 seconds later the victim's friend assaulted the offender and about 15 seconds after that the offender and his friend ran towards the car park. Closed-circuit television footage of the car park showed the offender now with a group of friends. Shortly thereafter the offender's group of friends moved through the cars in the car park towards the pizza shop. The description of that second altercation and the manner in which the offender's friend and the offender ran at the victim is consistent with the implication to which I earlier referred, but it was not addressed in the course of the conduct of the matter and I have put that implication to one side.
The third altercation in which the wounding occurred followed. At that point as the group of friends moved through the cars in the car park towards the pizza shop the victim was positioned on the disabled car parking spot directly outside the pizza shop. Six unknown males engaged the victim in a physical fight. There can be no view other than he was significantly outnumbered. The victim tried to fight back with his friend nearby but was, as I have noted, significantly outnumbered. The victim sustained a cut to his eye which resulted in him not being able to see properly throughout the remainder of the incident. Several males punched the victim in an upwards motion.
There is an image of these events in the document with the legend "The offender ran into the physical altercation. The victim tried to defend himself." There is a man, apparently the victim, standing between two motor vehicles. There are six males confronting him. The person who appears to be the victim has his left arm extended. There is another person some little way, perhaps two or three metres, behind the group of six approaching and then another two behind that person approaching, and then finally, coming up at the rear, is the offender. The positioning of his legs as depicted suggests he is running.
The offender approached the group from the back and merged into the centre of the group. Before doing so, as revealed in the closed-circuit television footage, the offender took the flick-knife from his pocket, swapped it from his left to right hand and extended the blade. He entered the melee and stabbed the complainant.
There is a series of five images.
The first of those has the legend, "The offender entered the group after swapping knife from left to right hand." The offender is depicted at the back of the group. He has his right hand towards his right side and his left hand extended across the front of his body. Both hands are very close if not touching.
In the second police photograph there is a legend, "The blade clearly visible." That shows the offender with his right arm extended down and there is, although difficult to see on the image that is included in the document, the blade apparently extended towards the ground.
In the third of these images there is a legend, "The offender entered the melee." He is there seen in the centre of the group involved in what was occurring.
In the fourth of these images the legend is, "The offender in the melee," and once again there is an image of him in the centre of the group.
Then finally there is an image of the offender after the stabbing and once again he is standing free of the group, the others apparently standing around but in close proximity to each other.
Seconds afterwards, the CCTV images depict the offender placing an item in his back pocket before running back to the car park. He left the shopping centre in a white Mercedes sedan with NSW number plates the particulars of which are included in the document. It is in respect of that motor vehicle that the additional offence was preferred.
The victim did not realise he was stabbed until the group dispersed and he saw blood on his person. The Crown accepts, according to para 26, that the offender did not have the intent to cause grievous bodily harm at the time of the stabbing. I noted in the course of argument that I found that concession to be odd. I cannot understand what other conclusion might be drawn from the use of a flick-knife to stab someone in the abdominal cavity other than an intention to cause serious bodily injury. Be that as it may, the Crown has accepted this proposition and has proceeded upon that basis and sentence has been determined accordingly.
The facts then turn to the injury. The victim attended hospital and underwent exploratory surgery. There is an image of the victim's abdomen and one of his face. The legend beneath these is: "The victim's injuries. Left wound was caused by the offender, the centre wound as a result of exploratory surgery." The left wound is in the upper quadrant to the right side of the victim's body. There are five staples visible. The exploratory surgery follows the midline from the area of the sternum down to below the navel. There are 17 staples securing that wound.
According to the facts, the wound penetrated the right upper quadrant in mid-clavicular line 3 centimetres below the costal margin thereby penetrating all layers of the skin. The victim suffered a secondary right rectus sheath haematoma and active haemorrhage. There was a small 3 centimetre mesenteric tear to depth of the peritoneum near the small bowel which was also closed. The term mesenteric is a reference to tissue within the body cavity.
The wound was washed and closed with sutures. There were no injuries identified to the liver, stomach or spleen. The victim was given IV fluids, tetanus medication, analgesia and antibiotics for 24 hours. He was required to wear an abdominal binder after the surgery other than when showering and on 23 July 2021 five days later he was discharged from hospital. He suffered the injury to his eye depicted in the second of the photographs.
The car identified as the getaway vehicle was registered to Yousha Samrah. A form of demand was placed upon him on 19 July 2021. The offender voluntarily attended the Bankstown Police Station on 20 July 2021. He was afforded the opportunity to participate in an interview but declined. He did not wish to participate in an identification parade. No inference adverse to him is drawn from that decision. He was perfectly entitled not to participate in an interview or an identification parade if that was his wish, so there is no adversity as a consequence.
The victim identified many people as having been possibly involved in the fight when he participated in a photograph line-up. The offender was included in the line-up at number 5. The victim identified him as definitely in the confrontation and the person who started everything. That is a matter I bring to account in support of the submissions made that the offender has demonstrated contrition in taking the course he has in these proceedings. I anticipate that had this been a trial it would have been available to the offender should he have wished to do so to put the Crown to strict proof upon his identification as the perpetrator of this crime.
On 20 July 2021 a form of demand was placed on the offender as to the identity of the driver of the white Mercedes. He failed to disclose either the driver or passenger in the vehicle at the time when police questioned him.

THE STANDARD NON-PAROLE PERIOD

The relevance of a standard non-parole period specified for an offence was the subject of the guidance provided by Johnson J in Tepania v R [2018] NSWCCA 247. His Honour beginning at para 109 embarked upon a discussion of the wide range of factors which bear upon the sentencing task as discussed in Muldrock v The Queen (2011) 244 CLR 120.
His Honour went on to discuss the provisions in Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999, what was intended by those provisions as explained in the Second Reading Speech and Explanatory Memorandum to the amendments leading to the provisions in their current form, and then what was required of courts in the assessment of objective gravity and the factors that are brought to account in deciding where an offence should be placed upon the scale of seriousness. His Honour then discussed the concept of moral culpability and how that will impact upon the assessment of sentence.
The provisions introducing standard non-parole periods are set forth in Part 4 Division 1A of the Act. These were amended to their present form following the decision of the High Court of Australia in Muldrock v The Queen (ibid). I have adopted the principles enunciated in that decision.
Section 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table taking into account only the objective factors affecting the relative seriousness of an offence that falls within the middle of the range of objective seriousness.
Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account. Section 54B(3) requires that the court record its reasons for setting a non-parole period that is longer or shorter identifying each factor taken into account.
The objective gravity of this misconduct will be assessed upon consideration of the objective factors affecting the relative 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 provided in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence.
The fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of 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 an arithmetical, staged, or tiered process of reasoning when assessing appropriate sentence, but must identify all relevant matters 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 The Queen [2005] HCA 25.
In the determination of sentence for offences for which there is specified a standard non-parole period it and the maximum penalty are legislative guideposts for the sentencing court along with other established sentencing practices and by reference to matters identified where relevant in ss 3A, 21A and 22 of the Act.

THE GRAVITY OF THE OFFENCE

In my view the objective gravity of this offence falls near to but below the mid-range of objective seriousness. Mr Lloyd in his submissions urged the view that the objective gravity should be found towards the low end of the range. The Crown acknowledged that the objective gravity is below mid-range but did not specify, at least in the original written submissions put to me, precisely where on the scale it should be found to be with any more particularity.
In the guidance provided by Johnson J his Honour said that factors such as motive, provocation or non-exculpatory duress may be taken into account in the assessment of the objective seriousness of an offence as well as factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment. His Honour referred to the common law which recognises that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence.
When dealing with moral culpability his Honour referred to the impact of mental abnormality which may diminish moral culpability and noted that an antecedent criminal history might illuminate moral culpability in a particular case. His Honour noted the guidance from Muldrock v The Queen (ibid) including that limited moral culpability may mean that retribution and denunciation do not require significant emphasis in the sentencing exercise.
His Honour referred also to Munda v State of Western Australia [2013] HCA 38 standing for the proposition that abuse of alcohol is a matter to be taken into account when assessing personal moral culpability but it must be balanced with the seriousness of the offending. One could transpose that principle to the abuse of illicit drugs which is in my judgement a matter that cannot be ignored in the assessment of the offender's moral culpability in this case.
His Honour also referred to Bugmy v The Queen (2013) 249 CLR 571 upon which Mr Lloyd relied in his submissions. The circumstances of the offender to which I shall come in greater detail included what is said to have been excessive discipline by the offender's father. The principles for which Bugmy stands do not apply in their entirety to this case but equally it should not be ignored that what is alleged in respect of the offender's father appears to have made some contribution to the formation of his personality and his response which included a significant measure of antisocial behaviour and ultimately resort to drugs which seems, according to the material before me, to have impacted upon the extent to which he could exercise proper judgement in his day-to-day life.

THE OFFENDER

The offender was born in 1999 and has this year turned 23. He was first before the Court in August 2020 charged with possessing prohibited drugs. He was given a conditional release order for a period of 12 months from 24 August 2020 to 23 August 2021. That was without conviction. This behaviour was in breach of that conditional release order. That has been dealt with by the Local Court. He was apparently convicted of that offence in May of this year and fined $200.
In June 2021 he was dealt with for an offence of being the responsible custodian and not disclosing driver's details. The offence date was 17 November 2020. That is a different offence to the matter to be taken into account on the Form 1. He was convicted and fined $1,200 for that offence. Then in May this year for another charge of possessing a prohibited drug he was fined $600. That offence was charged on 11 March 2021 and preceded the offences with which I am now concerned and accordingly could not be seen to detract from the steps taken by the offender to achieve rehabilitation.
A sentence assessment report was provided. According to this document upon the information provided by the offender and contact with his sister, employer, his psychologist, and the police facts and criminal history, he lives with his mother and brother in Greenacre and has a close supportive relationship with his immediate family they appear to be prosocial supports for him. He has full-time work in formwork construction. It is noted this is the first conviction for an offence of violence.
The report is in positive terms. He accepted responsibility for his offending behaviour. He reported that at the time he was associating with antisocial people and using prohibited drugs which had a negative influence upon him. He acknowledged that his antisocial lifestyle contributed to his offending. He acknowledged that the offence was committed in company. He no longer associates with those people.
He said he felt drugs were helping him deal with the death of a friend but acknowledged that they were in fact making him an angry person. He reported a reduction in his prohibited drug use since arrest but conceded that it needed to cease for him to lead a prosocial lifestyle. He reported feeling angry and not being able to control his behaviour and he chose to use violence to solve his problems.
He demonstrated insight acknowledging the seriousness of his offending and understanding the pain and harm that he has caused. He has insight into the negative effects prohibited drugs and antisocial peers have had upon him. He is willing to undertake intervention if required. He has engaged with a psychologist to assist him. He is willing to undertaking community service work. He has been assessed as at a medium to low risk of reoffending.
The offender did not give evidence. When the matter first came before me it was on 6 October 2022 I had read the material that had been then provided to the Court. I had the benefit of written submissions from Mr Lloyd KC. He spoke to those. The Crown spoke to their written submissions. I adjourned the matter for judgement and the imposition of sentence so that I might have the opportunity to digest all that had been provided and what was said on behalf of the offender.
Having reviewed that material, when the matter returned to me on 7 October 2022, I indicated a view that I had of the evidence, and to ensure procedural fairness I pointed to some aspects over which I held concern. For example, there was at that point no report from the treating psychologist upon whom it was alleged the offender had attended and I noted that there were discrepancies between the psychologist's report that had been tendered and the balance of the material that was before me.
I granted an application to adjourn. With the consent of the Crown the matter was listed on 7 November 2022 for further evidence but because of trials in which I was presiding I could not continue on that day and thus the matter came back before me today for finality.
On this occasion additional material was tendered on behalf of the offender including an array of analysis results from drug screening of urine. Between 14 October and 28 November this year there were nine occasions. Each of them was negative for amphetamine but positive for benzodiazepine, cannabinoids, cocaine, opiates and methadone.
There was also tendered a report from the offender's treating psychologist Amrita Chawla written on 5 December 2022. Although this was provided towards the end of the evidence I shall refer to it as the first document assessing the psychological profile of the offender considering that she was the practitioner who treated the offender in a relationship that commenced on 28 July 2021. The report responds to a series of requested details including her qualifications and experience over which there is no dispute.
She had 13 psychological consultations over 18 months with him. The dates upon which those occurred were 28 July 2021, 11 and 25 August 2021, 24 November 2021, 23 March 2022, 20 April 2022, 24 August 2022, 4, 12, 19 and 26 October 2022 and 9 and 16 November 2022.
Beneath the heading Purpose of the Visits it is said that he was referred for psychological intervention in September 2021. That date is after the first three consultations of which I am informed. I do not quite know how to assimilate that at the moment unless the following passage explains it. It is said that the referral came as a result of his experiencing frequent anxiety which had reportedly been prevailing for the last 12 months since losing two of his friends in a motor vehicle accident.
Questions that arise in respect of that include the possibility that anxiety arose requiring intervention in September 2021 in addition to those consultations that began on 28 July 2021. It is not entirely clear but it is said that he was experiencing grief and post‑traumatic stress disorder-related symptomatology at the time. He further advised of his upcoming court matter and detailed wanting support to sustain his good behaviour and reduce criminogenic needs. Once again, this suggests that in September 2021 the consultations were required in respect of the prosecution and the conduct that led to it when he first began in consultations with the psychologist.
Regardless, his history gleaned by the psychologist was a turbulent and transient childhood. He is one of five siblings. His parents divorced when he was seven. They regularly shouted at each other. His father is said to have destroyed property in their home in episodes of rage. He attributed his father's behaviour to his work in the military. He was described as "a very tough man."
He reported his school life as inconsistent and disruptive. He has a reputation as a menace at his public school. He was suspended for throwing a chair and was later expelled for schoolyard fighting. He repeated year 4 when his family relocated to Syria for two years. Upon returning he suffered a stroke and was diagnosed with Bell's palsy.
He vaguely recalled leaving school at the end of third term in eighth grade when attending school at Chester Hill. He was not accepted into any school thereafter. He attempted vocational studies at TAFE but was expelled during his first term. There is nothing before me as to the sequelae if any arising upon the diagnosis of Bell's palsy.
Notwithstanding his ineffective schooling he has worked as a carpenter in his uncle's business for the past two years. He acknowledged drug and alcohol abuse in his childhood. He spoke of witnessing heroin use and methamphetamine production and attributed that to having a desensitising effect upon him. He acknowledged his poly-drug use in teenage years and that he had supplied prohibited drugs for financial gain during his schooling.
He added that he and his friends would steal and restore bicycles later to sell them. He admitted to finding illicit substance use inconsequential until his friend died in a car accident in which he was the driver who was said to have had a drug-induced psychosis. He described symptoms consistent with PTSD as a result of this incident.
There is no evidence before me as to precisely what that event was, in what circumstances it occurred, or the proximity in time and circumstances between that event and the offender. It appears from what is written that he did not see his misuse of prohibited drugs as a difficulty for him until the loss of his friend in the collision, whatever it might have been, which then alerted him to the significance of abuse of drugs and what consequences might flow.
With regard to diagnoses it was noted that he answered all questions. He was alert and co-operative. He discussed aspects of his background to a limited extent without being overly descriptive. He was passionate and expansive in his manner. He was spontaneous, comprehensible and somewhat grammatical. There were no signs of discomfort. He maintained good eye contact. Impulse control appeared good. He was emotionally responsive and his expression was appropriate in intensity, range and depth.
He was aware of who he was and the time and place. Speech content was goal directed and relevant. His thinking appeared to be coherent, logical and sequential. There was a satisfactory level of rapport between the psychologist and the offender. There was no apparent anxiety caused by the sessions in their setting, process or termination. He displayed no disturbance of mood. His affect appeared appropriate in the context of the subject matter being discussed.
There was no evidence of obsessions or failures, hallucinations, delusions, misinterpretations of consensual reality, psychotic distortions or other perceptual disturbances. He denied ever suffering such. This part of the report then concludes: "Mahmoud's shared experiences suggest symptoms of adjustment disorder, antisocial disorder, post-traumatic stress disorder, grief, and depression and anxiety."
The Crown challenges the tender of that part of the report as evidence of diagnosis predominantly for the reason that the psychologist is not qualified to diagnose but may make observations with regard to the presentation of a patient or client that might be consistent with any such diagnosis should one be made.
When one looks at the preceding paragraphs though and considers their content it must be that the last paragraph within this section is developed upon representations by the offender to the psychologist rather than clinical assessment in the course of these consultations. There has been apparently no psychometric testing by this psychologist in the course of the time the offender has been attending upon her.
The consultations were limited to exploring his offending behaviour, understanding his history and facilitating self-awareness and personal reasoning. The question as to whether there was any psychological explanation for the offending is answered with the following information: "The offender is a young man who appears to have normal cognitive function and average intelligence with an early initiation to alcohol and drug use with experiences of high levels of dysfunction in family life as well as violence at home and in the community. Through the course of the sessions he seemed to present with symptoms of adjustment, antisocial and post‑traumatic stress disorders along with anxiety and depression-related symptoms. He may be suffering from a mental condition for which treatment is available in a mental health facility but is not a mentally ill person."
Once again, there is a question over the qualifications that would allow a psychologist to offer such a diagnosis. It is challenging to read that statement as in any way supported by what is contained in the section dealing with purported diagnoses and the observations there recorded. He is said to have attributed his offending behaviour to a lapse in judgement. He said that he was intensely grieving his friend's sudden death during that time and was regularly partaking in illicit substances as a coping mechanism. The information regarding the loss of his friend is limited, but as I understand it, that occurred sometime in 2019. The offence with which I am concerned was in July 2021.
He declared that he wished the offence never to have taken place, that getting caught might have been the lesson he needed and he acknowledged the stabilising factors that have come into existence in his life including employment, more time with his family, exercise and commitment to his psychological consultations and reduced drug use. It is not suggested that at that point, he has abstained.
The next paragraph I put to one side entirely. It is respectfully opined that he should be observed in an intensive corrections order. Any such review is based upon the information before the psychologist without the benefit of the principles that will guide this Court's decision in what is the appropriate sentence.
It is said that he has demonstrated increased personal insight over the last six months and his willingness to continue with treatment will be accommodated by the psychologist and the treatment plan is summarised. The psychological report tendered in the course of proceedings at first instance was provided by Sam Albassit written on 4 October 2022. I should note that neither psychologist was required for cross-examination and that Mr Albassit's report was tendered by consent.
This report was provided upon clinical assessment and psychometric testing over one and a half hours face to face. This occurred on Wednesday, September 28 2022. Additional material available to Mr Albassit was the statement of agreed facts and the offender's criminal history. This report was prepared at a time when the offender was aged 22, living with his mother and his four siblings.
He noted that the offender's parents were still alive and together but living separate lives. His childhood was traumatic and difficult and he had a neglected upbringing. His father was violent and abusive. This report is in greater detail than what was contained in the sentencing assessment report which has him in a close and supportive relationship with his immediate family who provide pro-social supports. For whatever reason, the sentencing assessment report does not include any criticism such as is made of his father in this report to which I have just referred from the treating or managing psychologist.
He said his father was diagnosed with post-traumatic stress disorder and had a chronic gambling addiction. His father had served in the Syrian army before coming to this country. He said he experienced ongoing family violence and neglect in the family home. He said his father was emotionally, psychologically and physically abusive towards the family and there were several instances of his father in an angry mood abusing him and his mother. His father would punch walls in their rental property, would throw plates, break glass and anything in sight "would go flying across the living room."
He said his parents constantly fought. They would scream at each other relentlessly. He recalls from about age 7, hiding in his room beneath the blanket. He said his father was strict and authoritarian and expected the family to obey him as if they were in the military. For punishment, he would be made to stand in a straight line with arms up above his head and he would suffer verbal abuse "a good beating."
His father would make him walk from Old Guildford to Chester Hill to attend school, a distance of about 5 kilometres each way. That was punishment when he thought he and his siblings required discipline. This occurred between the ages of 7 and 11. He spoke of his mother hiding money in her shoes so that she could give the offender and his siblings spending money whenever she had it. It was rare though that that ever occurred.
He said his father denied his children basic needs. He would take the remote control from the air conditioning unit from the house when he went to work to ensure that it would not be used during the day and that would enable him to save money on utilities. He said he and his brother slept in one bedroom on the floor without mattresses.
He said the neglectful and traumatic upbringing continued into schooling years. His schools attended are nominated. He completed year 6, went to a high school from year 7 until mid-year 8. He spoke of being bullied and harassed at school. That caused him to become angry and erratic and to get into trouble. He was in regular physical fights, most of which involved him defending himself against bullies. That is not entirely consistent with what was attributed to him in the other psychologist's report.
He said he felt targeted by students and teachers alike. He said that his poor behaviour was constant and relentless. He was moved to a behavioural school in the second half of year 8. He survived there for two months before expulsion. He left secondary schooling at that point. His behaviour was antisocial and unpredictable, he became more positional through chairs and blackboards and the ceiling fans in the classrooms.
He continued experiencing significant trauma as a young teenager. At age 13, he was punched in the back of his head, knocked out during the assault but was too afraid to seek medical attention because he did not want to alert his parents. He suffered his stroke at age 14, he received physiotherapy and medical treatment and he presents with a physical droop around his right eye consistent with what I understand to be the sequalae to Bell's palsy.
He said his mental health spiralled out of control. He used to sneak out of the bedroom window to get away from his father on a regular basis. He would meet his friends on the street, or in the park. He associated with an anti-social crowd. He found solace among his new friends. They used illicit substances and he joined in with them. He began using cannabis from the age of 14. That became daily. At 16, he began using cocaine and MDMA. By 18, he was consuming the substances regularly.
He enrolled in Chullora TAFE. He encountered similar bullying and harassment at that institution. He did not complete studies and then went on to work in his father in the industry. His father continued to control him, would not pay him, kept his money, his father said he was saving money for him, but he later found out that his father was using it to gamble. He continued to work but would not get paid. He would need to ask for minimal money so that he might support himself.
In April 2019, he suffered the loss of his close friend. He reported that in the year leading up to his death, his friend developed psychosis. He said he tried to help him, but in the end, he was not able to do him. His friend died in a motor vehicle accident. There is no further description of that event. He reacted badly to that event. He suffered major grief and emotional pain. His mental health spiralled out of control. He experienced suicidal ideation. He reported out of control substance use. I will quote the sentence because it appears there is a word missing. "He began using G and not after his friend's passing, he overdosed on the drug."
He became rebellious, distanced himself from his parents. His behaviour became increasingly erratic. He cared little about himself. He continued to live recklessly. He continued to use copious amounts of substances. He developed an addiction to gambling and escorts. He used escorts a lot; according to this, they fulfilled the emotional neglect he experienced in his childhood and into adulthood. He continued in his recklessness using cannabis, MDMA and G, prescription medications and cocaine.
He said coupled with his longstanding psychological and psychiatric issues and repeated physical assaults sustained and trauma associated with grief, he experienced ongoing flashbacks, nightmares and lucid dreams and vivid memories of his childhood and the trauma sustained throughout his life. These are not particularised. He became increasingly hypervigilant, he was a loner, he tended to fend for himself, he always thought that something was going to happen to him.
The symptomatology of PTSD and events described in the body of the report appears to have further triggered his hyper vigilant trait that he had a perceived threat to his safety and wellbeing. He said he would carry his knife in the fear of being jumped and assaulted. He maintained that he did not ever carry it to use it, but only for his protection.
The difficulty with that proposition is that it is inconsistent with what occurred in the confrontation over three separate events culminating in his decision to advance upon the victim, outnumbered by six other individuals, under attack, and the offender's intrusion into the melee to stab the victim in his abdomen before fleeing from the scene. It could not be said in those circumstances that he was carrying the knife and used it on that occasion only for his protection.
He said that on the weekend of the offences, he consumed copious amounts of substances. He then described the incident, attributed with a description of the incident which I shall quote. He said that he was crossing the road when the victim's car encroached onto the crossing. He stated that words were exchanged and the victim got out of the vehicle and came around to assault Mr Selman. He said a physical fight ensued and they went their separate ways. He said that he continued into the bakery where he was supposed to meet his friends for a meal. He recalled they walked into the shopping centre for a few minutes and walked back out only to see the victim outside the shopping centre waiting for him with two other men. That is not consistent with the statement of agreed facts.
Beneath the heading diagnosis, it is said that in the semi-structured interview the CID-V was completed with Mr Selman to assess historical and current mental health conditions. That is a semi-structured interview guide for making the major DSM-5 diagnosis for mental health disorders. A DASS-21 was administered. He returned a reading in the extremely severe range for all three subgroups: depression, anxiety and stress. In addition, the post‑traumatic scale interview version for DSM-5 (PSS-I-5) was administered. He returned a score in the severe range.
The psychological assessment determined that the symptomatology presented is consistent with a dual diagnosis of post-traumatic stress disorder and bipolar disorder. The psychologist confirmed the offender's symptomatology of substance dependence disorder in remission but active at the time of the offence. The psychologist said in the report that there was a direct correlation between the offender's mental health impairments and his offending behaviour, but I am not satisfied that he has offered a reliable analysis upon which to come to that conclusion.
It is said that he meets the criteria almost exclusively although the DSM-V criteria that the diagnosis was based upon includes the history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters, intrusion avoidance, negative alterations in cognition and mood and operations in arousal and reactivity. The sixth criterion concerns duration of symptoms. The seventh assesses functioning and the eighth clarifies symptoms as not attributable to a substance or co-occurring medical condition.
Under criterion A, stressor, the factor identified as I understand it is that he indirectly learnt that a close relative or close friend was exposed to trauma and if the event involved actual or threatened death, it must have been violent or accidental. Criterion B, intrusion symptoms, recurrent, involuntary or intrusive memories, traumatic nightmares, disassociation, intense or prolonged distress, marked physiological activity. Criterion C, avoidance, trauma related thoughts, trauma related external reminders. Criterion D, negative alterations in cognition and these include inability to recall key features, persistent negative beliefs, persistent distorted blame of self or others, persistent negative trauma related emotions, markedly diminished interest, feeling alienated from others, constricted affect. Criterion E, irritability and aggression, self-destructive or reckless behaviour, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance. Criterion F duration persistence of symptoms of the aforementioned for more than one month. Criterion G, functional significance. This is described as significant symptomatology of distress or social impairment. Criterion H exclusion, disturbance is not due to medication, substance use or other illnesses. That presents something of a difficulty in this case. With regard to dissociative symptoms, in addition to meeting the criteria for diagnosis, the experience of high levels of either depersonalisation or derealisation.
The report then goes on to list the symptomatology that was represented by the offender to the psychologist and these include asserted major symptomatology of post-traumatic stress disorder and bipolar disorder for most of his life and his traumatic upbringing involving abuse and emotional neglect and being subject to physical assaults, isolation, neglect and grief which led to him exhibiting substantial trauma related symptomatology. These is a general discussion of what individuals who experience traumatic events might suffer, including a higher risk of bipolar disorder and PTSD.
Bipolar disorder is then discussed. It is said that as a consequence of experience of significant trauma related to his childhood, neglect and significant threat to his safety. He experienced recurring intrusive thoughts, lucid dreams and flashbacks and poor sleep. He had difficulty with motivation and felt worthless. It had impact upon his ability to engage socially and connect with others. It is said that he met the criteria almost exclusively for post-traumatic stress disorder.
Hypervigilance is identified as extreme alertness accompanied by behaviour that aims to prevent danger. This can sometimes be mistaken for paranoia and it is said at para 32 that he has been experiencing chronic trauma in relation to his childhood neglect and from the subsequent traumatic physical assaults sustained and as a result, he sees danger everywhere he goes.
Then there was a discussion of the physiological changes that might explain post-traumatic stress disorder and ultimately at para 38, it is said that at the time of the offence, Mr Selman was experiencing significant symptomatology pertaining from his mental health conditions which markedly impaired his judgement and subsequent behaviour. On the statement of agreed facts, it is difficult to find evidence of that proposition. It is said that there is a direct correlation between his offending behaviour and ongoing chronic, psychiatric, psychological conditions.
The report refers to him as "she" when writing that he was subsequently exposed to physical assaults resulting in a pattern of abuse with re‑traumatisation of PTSD when "she" was threatened during the altercation outside the shopping centre. Clearly, there is an error in the structure of that para at 39 and at para 40, it is said: "Mr Selman was highly intoxicated on illicit substances, felt trapped, afraid, in a dangerous situation he and his friends found themselves in. Furthermore, was overwhelmed with anxiety, fear, and anger when he recklessly wounded the victim. He experienced flashbacks of his childhood, protecting himself from physical assaults and evading dangerous environments either from his father or from people who have tried to assault him. He said that his excessive paranoia led him to fixating that danger was all around him. As a result, it appears to have activated his hypervigilance. Due to his history of significant trauma, neglect and Mr Selman has the tendency to magnify the threat of violence which led to his disproportionate response."
That stands in stark contrast to the statement of agreed facts and I reject it. He admitted that he was undeniably wrong in what he did but said that he was overwhelmed with thoughts of threats to his personal safety and did not give sufficient thought to consequences of using the weapon. A treatment plan has been discussed.
The offender provided a letter, and before I embark upon that analysis, I will observe the guidance given in various authorities collated and discussed by Wilson J in Imbornone v R [2017] NSWCCA 144 where her Honour at para [57] referred to the various statements of principle found in the authorities cited, ultimately leading to the conclusion expressed in the decision in R v Harrison [2001] NSWCCA 79 in which stands for the proposition that "In the absence of any independent verification of the asserted behaviour, state of mind or of tangible expression of contrition, 'to treat this evidence with anything but scepticism would represent a triumph of hope over experience.'"
Bearing in mind the circumspection that is urged by her Honour in para [57] and the sub paragraphs there provided, I accept that the offender is contrite, although I am not persuaded that he I as contrite as suggested in the attributions given to him by the author of the sentencing assessment report.
The justifications which have been developed in the report prepared by the psychologist however offer some qualification that I have not overlooked, and notwithstanding my expressed findings with regard to the conclusions and the concerns I have about them as expressed by that psychologist, I do not intend to deny to the offender that in this Court in these proceedings he has by the material provided otherwise demonstrated contrition, or that he has strong prospects for his rehabilitation which he has undertaken I would suggest with an appropriate level of commitment.
Bearing in mind the caution urged by Wilson J in the judgement to which I referred, his document provides me with the details of his formative years, raised by his single mother, alongside of his five siblings with whom he's had a close relationship. He accepts responsibility for his conduct, he understands the seriousness of the offence with which he is charged, and regrets every aspect of his action, understanding the gravity and potential harm caused to the victim and his family and to the community, and to his family.
He writes that he recalls attending Bass Hill Plaza with his friend to have lunch. A day before this offence, he consumed a considerable amount of recreational substances and alcohol. His behaviour was unacceptable and inconsiderate and selfish. He in no way excuses his actions but claims that he was not himself and had been agitated by the initial meeting with the victim in the matter. His thinking he said was irrational. He had absolutely no intention whatsoever to place any person in danger as a result of his actions.
I pause here to note that it is argued by the Crown that self-induced intoxication is not a matter that can be found to mitigate assessment of sentence. That is now the law by force of s 21A(5AA) Crimes (Sentencing Procedure) Act 1999. That said, his use of drugs and alcohol is a matter that cannot be ignored in the compilation of the matrix of facts to be synthesised in the determination of sentence in this case, and although not a matter in mitigation, it does provide a basis upon which to understand his background and how he deteriorated into the person that he was on the day of the commission of this crime.
He writes of having thought of his conduct, of the consequences for the victim and their family upon which he ruminated when in custody. He spoke of having sought to change his behaviour immediately upon the grant of bail. He told his boss of what had happened and that caused him to be shocked and unable to understand how this had unfolded.
He then writes of his teleconference sessions with his psychologist Ms Chawla. These were by teleconference because of the COVID-19 pandemic. He accepts that from these experiences with psychologists, he had an undiagnosed mental trauma from childhood and teenage years.
He writes of having grown up in a large household of five siblings and a single mother which was difficult. His father was never present for most of it, and when he was, it was not a positive experience. He and his siblings began employment at a young age to assist their mother with household expenses and school fees. He was contributing to the household expense because his older sister recently married and that raised the share of expenses required of the remaining siblings; he speaks of the assistance that he has provided to his siblings and if he was restricted from contributing to his family expenses and assisting his mother with school, it would break him; this was a wakeup call for him when he realised how significant his actions were.
This part of his statement does not sit entirely consistently with what was said about his work with his father when his father was upon that description effectively misappropriating his wages for the work that he was there performing.
Whilst on bail, he has not committed any offences of this nature. He has taken time to resolve his Revenue New South Wales fines and he has since been reissued with a licence after serving a demerit point suspension. It is a feature of the case that is not disclosed elsewhere.
He has continued with his open bail conditions. He speaks of the changes in bail conditions. He writes that when he was granted bail, he recalled his mother and sister being present at Court in hopes that the magistrate would see that he did not intentionally commit this breach. I cannot accept that representation in circumstances where he has pleaded guilty to the intentional infliction of the wound, reckless as to the consequence of actual bodily harm.
There is a document provided by his older sister. She writes of him as having a generous and kind heart, always aimed to help his younger siblings and support their single mother, working fulltime and giving back to her family both financially and emotionally and speaks of his achievements in work and how the people with whom he works speak highly of him. The document speaks for his compliance with the curfew condition, his use of the bail conditions as a positive drive to change his life, his communication of deep regret and remorse.
It is said that the offence is completely out of character and his nature. During the time of the offence, he tells her, he was merely attending the plaza to purchase lunch with some of his friends, that on this occasion he was not thinking clear as a result of any challenge he was facing as a result of the COVID-19 pandemic pressures and the loss of his best friend in the fatal car accident. After he spent the nights in custody, he realised he needed to seek professional help for his mental help.
Once again, that part of the document is not entirely consistent with what's attributed to him by the psychologists who provided the first report. The implication of challenge caused by the COVID-19 pandemic is not further explained elsewhere in the material as I perceive it. Again, this speaks of his contrition, remorse, recognition of wrongdoing and insight into why it occurred, at least within the context of his misuse of substances.
His mother writes on his behalf. I note that his mother was in court. The Court extends to her its sympathy and understanding of the predicament in which he has placed her and indeed the other members of his family. I bring to account the anxiety and distress that they are experiencing as part of the punishment of which the offender is no doubt aware. It is not exceptional or substantial such as to indicate a course other than that which I intend to take, but it is a matter I have not ignored in assessing the penalty and the special circumstances that I am going to employ.
She said in this document that throughout his development, she has never witnessed such behaviour, he was always a caring son who assisted her and that the behaviour is completely out of his character. She speaks of his paralysis on the left side of his face, no doubt a reference to the Bells palsy that occurred when he was 12 years of age and the treatment that he required. She speaks of the difficulties and hardship he faced due to his father not being present and the pressure he felt to work from a very early age to support her and the family. Again, this is contrary to what was said elsewhere.
He lost his best friend in the fatal car crash in 2019. This affected his mental health and wellbeing. She writes of nightmares, post-traumatic stress from the crash scene and the use of recreational drugs to combat this behaviour. She is not qualified to offer an opinion with regard to that, but I accept that she is providing her observation of what she saw in her son as a consequence of that event. She speaks of him as compliant with bail, the impact of the custodial period upon him and his expressions of remorse.
There was some issue with regard to his change of address details to which were identified by her as breaches. I put them to one side. That is not impacting upon the offender adversely in this. She said that he told her about the offence and the way in which it took place and that she could hear deep regret and remorse in his voice. She attributed him with disappointment in his behaviour and his decision to seek professional help. She speaks of the benefit that provides and the changes that are apparent.
There's a document provided by a family friend a Ms Bazouni, known to the offender for the last 15 years. She speaks of an incident where an Uber driver was in a difficulty with a flat tyre and the spontaneous response to that circumstance by the offender offering his help.
He always made them laugh when they were together, often taking his younger sister for walks and spending a lot of time mentoring her as she navigates her teenage years. He has a strong relationship with his other siblings. He is a promising young man with a kind heart.
The employer from Newform Pty Ltd provides a character reference. He is one of his most experienced tradesmen and he speaks of him in the most positive of terms, as a young man of integrity and honesty, community minded, who puts the needs of others before his own.
His sister, Nadine, writes of the offender as her younger brother. She has watched him grow into the young, well‑mannered man he is today, offers help around the house, takes pride in a clean household, helps his mother in all respects, faced with many challenges, he grew up without a father and having no strong role model and as a result he developed mental health issues, that went undiagnosed for years. She speaks of the struggle he suffered when he lost his best friend in the car incident in 2019 and his resort to recreational drugs that clouded his judgement causing him to act out of character.
In 2019, the offender was 20 years of age and thus 19 at the time of the motor vehicle incident in which his friend was lost. According to the history attributed to elsewhere, his embarkation upon the use of illicit drugs predated that event and could not have been the initial motivation for his resort to drugs. I bring to account as I have indicated that there was a disruptive family life through the marital breakdown between his parents leading to the pattern of behaviour that evolved including his mis-use of drugs which perhaps which on the material before me added to his resort to substances.

SUBMISSIONS

The submissions provided by the Crown came in two iterations. In the first of those, I was reminded of the significance of the timing of the plea, his pre-sentence custody and in the assessment of objective seriousness, it was submitted that relevant is that neither the victim or the offender knew each other. The victim attempted to verbally defend himself as the physical altercations evolved, the sequence of the altercations was noted with the offender being in possession of the knife inside the pizza shop. The Crown asks that that be brought to account as a desire to use the knife which was in contemplation from that point on.
In light of the plea of guilty and the concession made by the Crown of which I have some question as I have indicated, I do not believe I should bring that into account. One way or another, he was carrying the knife and the difficulty for the offender is that he came to the group of six already embarked upon their attack of the victim, entered the melee and used the knife to inflict the wound. Whether he contemplated doing so at the time he was seen playing with the knife in the pizza shop or manipulating the knife more correctly, in the pizza shop, is really a matter that could not be brought to account in my opinion.
The sequence of events is described. The offender abandoned the scene immediately without considering the welfare of the victim whom he stabbed and the extent of the injuries are discussed. Aggravating factors are the use of the weapon which is not an element of the offence. He was on conditional liberty at the time. That is not a matter that aggravates the offending or the proportionate sentence, but it does not form the extent to which leniency might have otherwise been granted. That speaks to the need for specific deterrence to be given appropriate consideration.
This was not planned or organised criminal activity. There is no record of significant prior convictions and the Crown concedes good prospects of rehabilitation. The subjective case is not challenged. Subject to the availability of the material relevant to that once it would be provided, which at that point it was not, in September 2022. The Crown notes the inherent seriousness of the conduct, the ready and willing production and use of the knife in the circumstances.
Relative youth of the offender is acknowledged, but that has to be balanced against the nature of the conduct. There are elements of impulsivity in terms of the circumstances, but it could not be said with respect, that this was an entirely impulsive action, bearing in mind the span of time over which the interaction occurred and the ultimate decision to enter the melee with the knife produced whilst six individuals were already embarked upon their attack. There is a strong need that general deterrence be given weight; knife crime is a significant issue in the community which also informs the decision.
In the second lot of submissions provided, social deprivation is acknowledged against the balance available from the finding that his parents were not drug users, his mother still is and was a strong supporter and provided care and nurturing to the offender, who in response it is quite clear gave all that he could to support her and his siblings financially and emotionally.

CONSIDERATION

All of his siblings appear on the material to be successful and strong supporters and they weren't given to the lifestyle and pattern that was followed by the offender. It could not be described as extreme social deprivation such as to engage the full weight, the principles for which Bugmy v The Queen stands upon which the submissions made by Mr Lloyd are advanced.
The aspects of mental health that are raised in the documents present a particular challenge to the Court and it could not be said, I agree, that there is sufficient causal connection to moderate the weight to be placed on general deterrence and that said, I note what was said by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 regarding the significance of mental health challenges, such as they might be in this case, rendering difficulty for the offender in gaol.
The underlying mental health issues of post-traumatic stress disorder and bipolar disorder and substance use disorder are said to be established. I am not quite satisfied of that. There were sequalae I accept to what is alleged of his father's mistreatment of him but that has to be balanced against the material that has him as a contributing and worthwhile member of the family, not demonstrating any of the characteristics which are attributed to him in the assessment made by the psychologist.
The Crown concedes impulsivity to some extent. In my view, it is more appropriately described as lack of judgement, a product of his evolution to that point, including his ongoing misuse of prohibited drugs. He was carrying the knife; he had been carrying the knife before the event and he readily produced it in circumstances where he ought not to have done so. I agree with the Crown's submission that nothing other than fulltime imprisonment is appropriate in this case.
I have indicated where I found the objective gravity to be placed in this offence. He committed the crime in company, armed with a knife, neither of which were elements of the offence. The victim was substantially outnumbered by the group attacking him, six in number, including those that were following behind and including the offender bringing up the rear.
A suggestion that this was impulsive must be qualified by the timespan between the three separate confrontations in which in my view, the victim could not be described as an aggressor. Whatever the driving might have been at the pedestrian crossing, it could not have justified the response to it at any time in these interactions by the offender. The attack with the knife was on its face vengeful and unnecessary.
General deterrence must be given significant weight along with the other purposes of sentencing including denunciation and recognition of harm. I have read the extensive and careful submissions prepared by senior counsel on behalf of the offender and some of the matters urged I have difficulty accepting.
I do not agree that this is toward the lower end of objective seriousness. I do not agree that this was impulsive and not pre-meditated, to the extent that the strike when it occurred could be so described bearing in mind what had evolved across the timespan. It cannot be said when precisely the offender decided to pull the knife out and make use of it, but it must have been at some point at or before the time when he approached the group and inflicted the wound.
There is description of the victim's erratic manner of driving and that the offender had no intention to cause grievous bodily harm. I do not offer any further comment in regard to that, other than to note that there is no evidence from which I conclude that there was erratic driving on behalf of the victim.
His youth and minimal criminal record is noted and I accept he has a relatively prior good character which I accept. I accept that his prospects of rehabilitation are strong. I accept he has demonstrated remorse. I accept that the significance of the plea of guilty. It is said that his motive was an overreaction to the perceived erratic driving by the victim when the offender was in a hypervigilant and intoxicated state. Intoxication as I said, does not mitigate in circumstances where it was self-induced. Whether he was hypervigilant is also difficult to accept as a fact in the circumstances as they unfolded as described in the statement of agreed facts.
I accept his steps towards rehabilitation including the attendance on the psychologist who has provided some help. I accept that he suffered punishment already in the form of the bail conditions. I accept the moderate impact of the Bugmy considerations in this case.
I am challenged I might say with regard to the assessment of mental state consistent with the assertions in the psychologist's reports.
It is difficult to come to a conclusion in that respect, although I do accept that there must be some impact arising from his father's attitudes leading to his antisocial behaviour throughout his schooling and his resort to drugs because of his access to those provided by inappropriate associations through his formative years. I make that finding notwithstanding what is said in the most positive terms by his family when describing the support he has given throughout his life to his family.
Hardship in custody I accept including that in the current climate with COVID there are difficulties that are presenting day by day.
There are special circumstances by reason of his youth, the need for an extended period on parole to reintegrate with the community and hopefully turn away from his past lifestyle and maintain the progress he has made towards rehabilitation. I am not satisfied that a sentence of less than two years is appropriate in this case.
I am reminded of what was said in R v Pullen [2018] NSWCCA 264 by Harrison J at paras 84 to 89 and I acknowledge the significance of a sentence of imprisonment in the community by way of an intensive corrections order, but my finding in this case is that does not meet the circumstances that must be addressed.
I agree with the observation regarding individual justice and the observations made in the judgement in R v Osenkowski [1982] A Crim R 394.
I have taken into account what was with regard to an ICO and I am reminded of the statistics that are available, helpful, although they are in the help they might provide in the determination of the matter.
I shall certify the Form 1 confirming that I have taken into account the additional offence. Form 1 offences were the subject of a guideline judgement in which Spigelman CJ provided assistance to sentencing Courts. I refer to Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.
The additional offence will impact upon the sentence to be imposed for the principal offence but to a marginal extent in light of the fact that it is all part of the general misconduct upon which the offender engaged; it will have impact and there will be a modest increase to reflect the need to give appropriate weight to the aspect of personal deterrence and recognise the entirety of the misconduct upon which the offender engaged and to meet the community's entitlement for denunciation and retribution for all of the offences that are before me.
I certify the Form 1 to confirm that I have taken the additional offence into account. The extent to which it is to impact of course is also informed by the maximum penalty that is specified by the legislation creating that offence which in normal circumstances would be dealt with as a summary offence in the magistrate's Court.

THE SENTENCE

The offender is convicted of the offence of reckless wounding. I specify a non-parole period of imprisonment of 1 year and 3 months commencing on 8 December 2022 and to expire on 3 March 2024 when he will be eligible for parole. I specify a further period of imprisonment of 1 year and 4 months, commencing at the expiration of the non-parole period. That shall expire on 3 July 2025. The aggregate sentence therefore is one of 2 years and 7 months, including the non-parole period of 1 year and 3 months. To repeat those dates, they shall commence on 4 December 2022, eligible for parole on 3 March 2024. The overall sentence to expire on 3 July 2025. 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 October 2023

At a glance

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Decision date

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Judgment (15 paragraphs)

Parties

Cases Cited (10)