The prisoner, Ronald James Sinnett, appears today for sentence in relation to four matters dealt with on indictment and also a matter on a s 166 certificate, of driving whilst disqualified, a related offence that is required to be dealt with discretely unless I remit it back to the Local Court.
One matter of the matters for sentence I commenced at Wagga Wagga. That is an offence of reckless wounding, pursuant to s 35(4), Crimes Act 1900. That offence I am told, carries a maximum penalty of seven years' imprisonment, with a standard non‑parole period of three years' imprisonment.
There are three counts of assault occasioning actual bodily harm. Those offences committed on the same date as the reckless wounding offence. Those offences pursuant to s 59 Crimes Act 1900, dealt with on indictment, have a maximum penalty of five year's imprisonment.
I appreciate, as has been pointed out by counsel for the prisoner, that the various offences I have referred to are Table 1 offences and may be dealt with summarily. But the reality is that they have not and I am required to have regard to the relevant maximum penalty, when jurisdiction is exercised in this Court. I appreciate, in that context, that the prisoner was indicted but pleaded not guilty to an offence of wounding with intent to cause grievous bodily harm which of course, carries a much greater maximum penalty than the reckless wounding offence with which I am concerned.
The prisoner was arrested in relation to the current matters on 6 December 2017 and has been in custody in relation to them since that date. However, as has been pointed out, the prisoner in fact has been sentenced for separate offending at the Local Court, at Wagga Wagga on 11 December 2018, in respect of two offences, committed in October 2017. One of dealing with property the proceeds of crime and the other, possessing a prohibited weapon without a permit. For these offences he was sentenced to seven months' imprisonment and two months' imprisonment respectively, each term of imprisonment commencing on 6 December 2017. The prisoner was charged in relation to those matters on 19 October 2017 and thus those charges were pending at the time of the commission of the offences of violence with which I am concerned and committed on 22 November 2017. I do not need to go through the history of the determination of these matters to the point where the prisoner appears for sentencing, other than pointing out that in respect of the assault occasioning actual bodily harm matters, the prisoner in fact, was arraigned in November 2018 before another judge and entered pleas of guilty to those charges at that time. The outstanding reckless wounding matter, the principal matter with which I am now concerned, came before me for trial at the Wagga Wagga District Court in 2019 with a charge of "wound with intent" to which he pleaded 'not guilty'. The prisoner pleaded 'guilty' to the reckless wounding charge, but the Crown did not accept that plea in discharge of the indictment. I found him guilty of the reckless wounding charge sitting without a jury.
With regard to the driving whilst disqualified matter, by reference to the Court Attendance Notice, this was an offence committed on 22 November 2017 at Junee, and is an offence that is intimately connected with the personal violence matters with which I am now concerned. The driving of the motor vehicle was a direct consequence or result of the prisoner's wounding of the victim as set out in the reckless wounding charge.
With regard to the facts of the matter as they can be found from the evidence available to me, the victim in this matter was the prisoner's wife. They had been married, apparently for approximately ten years. They had a seven year old son who suffers from some form of autism.
The family travelled from Junee, where they lived, to Wagga Wagga for some reason and then were returning to Junee. The prisoner was sitting in the car beside the victim, whilst the child was sitting in the back on the passenger side. As the victim was driving toward Junee, there was an argument between the prisoner and the victim, and then approximately ten minutes or so, from Junee, the prisoner produced a knife and stabbed her, in what I take to be a slashing motion, having regard to the character of the wound and the protrusion of the knife through the back or the side of the seat in which the victim was sitting, with the knife entering her back.
The victim stopped the car. Both the prisoner and the victim got out. The knife itself fell into the foot well on the front passenger side. The prisoner then drove the motor vehicle into Junee. The victim throwing the knife out of the window. Whether that was an act of self‑protection or not, is difficult to determine.
When they got back to their residence in Junee the victim began packing up her personal items and informed the prisoner she was leaving. The prisoner picked up a glass ashtray and hit the victim over the back of her head, causing swelling to her head. That is count 2 on the first indictment presented in November 2018. That act of assault occasioning actual bodily harm, arising from the use of a glass ashtray, which smashed. The victim is not sure why it smashed. One could reasonably assume that the smashing of the glass ashtray arose out of the force used by the prisoner in swinging or manipulating the ashtray against her skull. He then grabbed a hammer and hit the victim in the leg with the hammer. This is count 3 of the first indictment and then he hit her in the lower back, causing swelling and bruising to both areas. The second striking constituting count 5 in that indictment produced in November 2018.
The victim ran off for assistance. Police were called. The prisoner had disappeared. The friend of the victim, who came to her assistance, noticed the victim was bleeding from the wound to her body. The victim was taken to Wagga Wagga Rural Referral Hospital. She was found to have a 1 centimetre deep, 5 centimetre wide laceration over the posterior aspect of the left chest wall with a circular contusion about 4 centimetres in diameter, together with bruising and swelling on her left thigh. The treating doctor was of the opinion that these injuries were consistent with the victim having been assaulted with a blade, and most likely a hammer.
The motor vehicle was examined and an incision in the left hand side of the driver's seat which went through to the front of the seat, consistent with the use of a sharp instrument such as a knife was found along with some blood. The prisoner was arrested on 6 December 2017.
It is interesting to note, in the context of the prisoner being said to be vision impaired, that he was capable of inflicting this injury, obviously deliberately to the victim in those circumstances and was able to drive a motor vehicle. The vision impairment of the prisoner as he presents himself before me in Wagga and here in Sydney today is a condition, as I understand it and I have no evidence to the contrary, that he has suffered from for some period of time. But the extent of that impairment is difficult to gauge in the context of the facts of this matter, being that less than two years ago he was able to drive a motor vehicle to Junee. I point out, of course, by reference to the related charge that he was disqualified at the time of that driving. I will come back to aspects of his subjective case shortly.
With regard to the pleas of guilty, they were entered at different times. I acknowledge, by reference to what I would call the principal count with which I am concerned, the reckless wounding count, that the prisoner was arraigned on a charge of wounding with intent to cause grievous bodily harm as I previously identified. It was initially submitted by learned counsel for the prisoner that he be entitled to a discount of 25% upon the otherwise appropriate sentence for those matters to which he pleaded guilty. I could not agree with that submission, irrespective of the accounts that I have been given about the forensic history or the litigation history of the matter. The prisoner was committed for trial in relation to counts of assault occasioning actual bodily harm for which he had been initially charged. He was charged in relation to the wounding matter in terms that would have permitted him to offer to plead guilty to that charge at the Local Court, to be committed for sentence if need be, or else seek summary jurisdiction if the Crown was prepared to accept that plea. It is correct to say that the acceptance of any plea by the Crown was difficult in the context of the way in which the Crown chose to arraign the accused. Ultimately, I have concluded that in the context of those matters where pleas of guilty were entered, I should afford the prisoner a discount of 15% upon the otherwise appropriate sentences in line with the submissions that have been made by the Crown.
With regard to the prisoner's criminal history this is a matter of considerable significance in this particular sentencing exercise. The prisoner was born in March 1969 and thus is 50 years of age. He has findings of guilt that go back to 1983 when he was approximately 16 years of age. I propose to ignore his Children's Court record. There are a number of findings of guilt in the Local Court from 1989 onwards, when he was approximately 20 years of age. He was convicted of various driving offences and in 1991 with an offence of assault occasioning actual bodily harm for which he was sentenced to three months imprisonment. At the moment I am only going to concentrate on those convictions that constitute acts of violence. He was also convicted at the Blacktown Local Court in respect of what I understand to be a separate act of assault occasioning actual bodily harm for which he was placed on a recognizance under the then existing provisions of the Crimes Act for a period of two years. He was convicted of assaulting police in 1992 and again placed on recognizances to be of good behaviour. He was convicted at the Blacktown Local Court in April 1994 of common assault and other offences. For that assault he was sentenced to four months imprisonment. He was subsequently convicted in February 2001 at the Penrith Local Court of 'malicious wounding' as it was then called, for which he was sentenced to 18 months imprisonment with a non-parole period of 12 months. On the same date he has a conviction recorded against him for a charge levelled on a different date of "malicious wounding with intent to cause grievous bodily harm" for which he was said to be imprisoned for 18 months with a non-parole period of 12 months. Although there are different charge dates I have some concern that the criminal history is not entirely accurate, given that both matters were dealt with in the Local Court and given the fact that even in 2001 I would not have thought the Local Court had jurisdiction to sentence somebody in relation to a count of wounding with intent to cause grievous bodily harm. So I will regard that as the one offence. He was subsequently convicted of "recklessly cause grievous bodily harm" at the Wagga Wagga District Court in September 2013 for which he was sentenced to two years and seven months imprisonment with a non-parole period of one year and three months. He was also convicted on that occasion of assault occasioning actual bodily harm and sentenced to 12 months imprisonment. Those sentences being imposed in respect of offences committed on 20 October 2012. I have the facts in relation to that matter.
I should point out that the prisoner has also previously been convicted of driving whilst disqualified. For example in 2007, placed on a three year good behaviour bond, convicted of driving whilst disqualified in 2008 and sentenced to 12 months imprisonment. He was also sentenced to 12 months imprisonment in relation to driving a conveyance without the consent of the owner when dealt with at the Parramatta Local Court in August of 2008.
The prisoner appeared at the Wagga Wagga Local Court for sentence on 9 October 2015, which is within days of being charged and sentenced in relation to a number of offences which relate to the victim of the current matters. He was sentenced to an aggregate sentence of 16 months with a non-parole period of ten months. Those sentences commencing on 6 October 2015 and the head sentence concluding on 5 August 2016. The criminal history refers to offences of assault occasioning actual bodily harm, destroying or damaging property and two counts of intimidation. He appealed to the Wagga Wagga District Court in relation to those sentences and the sentences imposed at the Local Court were confirmed.
He was further charged and dealt with at the Wagga Local Court on 5 September 2016 in respect of offences of intimidation and contravene an apprehended domestic violence order for which he was sentenced to 12 months imprisonment, to date from September 2016 expiring on 1 September 2017. I have the material in relation to the two offences for which concurrent sentences were imposed. I note that the head sentence in relation to those offences concluded on 1 September 2017 only two and a half months before the offences with which I am now concerned were committed.
As I said there are a number of other convictions recorded against the prisoner. It is said by reference to the criminal history that the prisoner has, at the age of 50 spent something like 19 years in custody. Whether that is an accurate statement or not, I really am not sure. I note he has convictions in other jurisdictions. For example in Victoria he has findings of guilt in relation to criminal damage and relatively minor offences. He has a conviction recorded in 2004 at the Magistrate's Court in Adelaide for a finding of guilt, or some adverse finding, in relation to a domestic violence offence leading to a restraining order. As I said, the convictions that he incurred whilst awaiting the disposal of the current matters are not matters for which I have the facts, although I do have the facts in relation to the acts of violence and the like towards the current victim.
In respect of this matter I have not been advised whether the prisoner was subject to bail at the time of the current offending of 22 November 2017. Without firm evidence of that I could not conclude that the prisoner was in breach of conditional liberty at that time. But the record seems to suggest that that may have been so.
With regard to the Community Corrections Service, it has prepared a Sentencing Assessment Report. The prisoner has apparently separated from his wife, presumably in the wake of the current offences after a history of violence towards her. The spirit of the Community Corrections Sentencing Assessment Report, in my reading of it, reflected either a lack of insight into his offending or a lack of regard for the effect of his conduct upon his former partner. He seems in the report, by reference to the information that was provided to the reporter, to place the blame for his own violence and his own misconduct upon the victim. For example, whilst the Community Corrections Service officer notes a "problematic offending history of domestic violence", the report says;
"He disputed his circumstances at the time of the offence (sic) stating that his partner disclosed bad news that she had betrayed their relationship prior to the event taking place".
If that is to suggest in some way that there was an explanation for his conduct because she disclosed some "bad news to him", that reflects, on my understanding of the prisoner's criminal history and the facts of the case, an entirely distorted view of his own responsibility.
He is described in the report from Community Corrections as being "unable to summate (sic) his understanding of the impacts on the wider community" of his conduct, although he "identified the physical impacts of his offence on his victim".
As was the case today when he gave evidence about his drug use, skilfully cross-examined about that issue by the learned Crown Prosecutor, he seemed to place the responsibility for his own drug use upon the fact that his partner was herself a person using drugs in circumstances whereby, on his own admission, he had been a user of drugs in various ways over a lengthy period of time, long before he met the victim of the current offences.
In relation to his previous supervision it was noted that his parole order that expired in 2017, reflected focus upon criminogenic needs of "aggression and finances" and the "management of stress and anger and promoting identification of self-awareness". To be fair, that period of parole was not a lengthy time. But in the context of the reasons for him being on parole, that is offending towards his then wife, it is clear that he did not take much from the assistance that the Parole Authority was endeavouring to provide him through Community Corrections.
He is assessed by Community Corrections as being at a "medium-high risk of re-offending", which I think in the context of his criminal history, is something of an understatement. But I am prepared to accept that as their assessment applying the actuarial instrument that is used by that Service. Sometimes these matters are more plainly obvious simply from objective facts rather than any actuarial instrument, such as the character of the offending and the criminal history of the particular offender.
There is a detailed program set out as a supervision plan should the prisoner be released to custody and I acknowledge that as being something that may provide some assistance to the prisoner even at this latter stage of his life. He certainly needs to receive medical assessment and treatment to engage in interventions to address past problematic illicit drug use, as recommended by Community Corrections. He also need to undertake programs within custody as recommended by Community Corrections.
The prisoner gave, I regret to say, quite unconvincing evidence about the circumstances of the offending and particularly the measures he has taken to avoid the situation that arose in relation to his wife. He expressed the opinion that his offending as it may be related to his methylamphetamine use arose out of him "trying to deal with (his) problems". He admitted in the answers he gave to the learned Crown Prosecutor that he knew that taking amphetamines was bad for him. That contributed to previous offending. Yet he sought to state that he did not know that he could seek "help" either in custody or out of custody in relation to these matters.
With the greatest of respect, in the context of his criminal history and other matters, it is impossible to believe that a person of the prisoner's background and circumstances would not know where he could "seek help" either through parole supervision or Community Corrections supervision either within or outside the criminal justice system.
The prisoner claimed in his evidence given before me, that he was prepared to change his ways; that he had found somebody in whom he could confide his problems or discuss the issues that might explain his offending. I have a reference from a person that the prisoner says that he has been in a relationship with for one month. The prisoner has been in custody, of course, since December 2017. I understand, of course, people can be "in a relationship" although one partner is in custody and the other is living in the outside world. But I find it very difficult to accept that a relationship of this short nature or period of time could provide some "guarantee" for some improvement in the prisoner's attitude towards women generally or towards particular individuals.
I note in the reference provided by this person to whom the prisoner referred, that she has children. She does not have any concern about the safety of her children and that the prisoner is welcome to reside with her and her children in Junee. I accept for the purposes of this aspect of the evidence that the prisoner has known this woman for some period of time longer than the length of the relationship. Obviously they knew one another when he was living in Junee within the community. But with respect to her confidence in the prisoner's behaviour, his treatment of his former wife should cause her some circumspection. It certainly provides some circumspection in my assessment of the capacity of someone in that woman's position, to provide any particular assistance to the prisoner; I hope she can. But I cannot have confidence that that will be so.
The prisoner has undertaken some courses whilst in custody I note. Whilst at Goulburn Gaol he has undertaken a program in relation to identifying matters in respect of domestic violence. But it seems to me, with respect, that the prisoner's past appearances at court in respect of offences of domestic violence and any penalties imposed by the Court, have not in any way changed his attitudes.
With regard to other evidence available to the Court, I have a report from a psychologist. The prisoner has indicated that the history that he gave to the psychologist was accurate and truthful.
I approach the prisoner's evidence, as I said, with some circumspection. The cross-examination of the prisoner by the Crown identified particular inconsistencies between his assertions here and the history given to the psychologist that reflected in my mind some unreliability in the prisoner's recollection of matters of history.
I appreciate as far as the evidence takes it, because it really is a matter that one might have thought there would be some historical information to provide to the Court, that the prisoner has in the past been diagnosed with what is described as "albinism". Thus he has fair complexion and is said to be "partially blind and sensitive to light because of his condition".
I do not doubt that that is so. He certainly gave the impression to me when I had him before me in Wagga Wagga in the flesh that he was a person of some limited eyesight that may be related to his physical presentation. But on the other hand as I have already pointed out, he is well capable of using weapons to strike people, as he did on this occasion with a knife, an ashtray and a hammer. Each it seems used in a manner reflecting his ability to be able to find his target so to speak and he also was able to drive a motor vehicle. So the extent of his sight inhibition is not properly measured either by his representations about it or the history that is contained in the psychological report.
With regard to his upbringing he gave an account of some dysfunction and some difficulties in his relationships with a sibling and also difficulties in relationships with other children at school. I am prepared to accept that he would have been held out for some discrimination in relation to his appearance and his condition. But the claims of the prisoner that he was "mercilessly bullied" by other students, I could not accept simply on the say so of the prisoner. It may be true, it may not. It does not, to my mind, explain the extent or the character of his criminal history with the greatest of respect to some of the submissions that have been put before me.
He, in the history he gave the psychologist, seemed to me to be trying to shift the blame of his conduct for both his drug use and his violence, to his partner. This is not an uncommon situation in domestic violence circumstances. Not that that prisoner has made this claim, but it is not uncommon for men who commit acts of violence against women to make the claim that "she made me do it" or something along those lines.
Whatever argument was going on between the prisoner and his partner as they were driving back from Junee is to be frank, quite unforgivable to strike someone with a knife while they are driving a motor vehicle, bearing in mind that they would be concentrating on the road, unarmed and unable to defend themselves.
The psychologist purports to try and relate a medical and psychiatric history but in the absence of any contemporaneous record of any particular diagnosis or treatment given to the prisoner it is not possible for the Court to act upon the accuracy of the medical and psychiatric history provided by the prisoner. For example he refers to the head injury that may have led to a "possible brain injury". The assertion of the prisoner in that regard cannot be acted upon by the Court. The prisoner claims some diagnosis at some point whilst at Goulburn Gaol last year of suffering from "post-traumatic stress disorder". One could not act upon that history or assertion in the absence of any proper diagnosis just based upon the clinical observation of the psychologist and the history given by the prisoner.
The psychologist reports the prisoner is taking an anti-depressant in custody which does assist the prisoner to some extent but that does not assist me to come to any particular conclusion about any relevant condition that the prisoner may suffer from.
The report notes the undertaking of what is called the EQUIPS Program at Goulburn Gaol and I acknowledge that as a matter to the credit of the prisoner. It seems to me, however, somewhat striking that a man of this prisoner's age with his criminal history and the proven history of misconduct towards others, as shown for example in the facts provided to me, that he should only now at the age of 50 come to realise the effect of his conduct towards others and the impact of his conduct upon those with whom he is in a domestic relationship.
To come back to an aspect of the matter that is reflected in the psychological report in the subject of examination by the prisoner, the prisoner makes a claim of prior childhood sexual abuse. I could not conclude that that assertion is true. I note that the prisoner claims that it had happened, but in the absence of any detail available to the Court that this has been a matter upon which the prisoner has reported or sought assistance for over the years, the assertion at this stage is something that I can only note without being satisfied that it is true.
Thus, the psychologist's assessment of the prisoner has to be approached with considerable circumspection. It seems to me, as sometimes happens in relation to psychological reports, whilst a lot of time is spent on assessing that from the perspective of the claims made by the person being examined, too little attention has been paid to those matters for example in the criminal history that perhaps more eloquently reflects the reality of the attitudes of the person who is being examined.
The psychologist recommends various therapies or treatments to address matters that flow from the history of this claim by the prisoner. It may be over a period of time as a boy and a young man he was subject of abuse, physical violence and the like, but at the same time his criminal history reflects a capacity to impose physical violence upon others for his own purposes.
I accept that to some extent the prisoner appears to have some vision impairment that does make him "more vulnerable than other prisoners". It may reflect some barrier to access programs in custody which I have taken into account. I believe the issue of his vision impairment needs to more scientifically and properly examined. To my mind it certainly has not been sufficiently reported upon in a manner that the Court could act upon at this point. But it may be that the National Disability Insurance Scheme will need to assist him as well when he is released from custody.
As I said, the psychological report's limitations are largely caused by its dependency upon the history provided by the prisoner in the absence of any independent or contemporaneous record to support the claims of the prisoner.
With regard to the submissions of the parties, I think I can concentrate largely upon the submissions of learned counsel for the prisoner. He is, as the Crown points out, to be congratulated upon for the thoroughness of his submissions and their general fairness to the reality of the situation.
With regard to the objective seriousness of the offending, dealing with the reckless wounding charges and bearing in mind the fact that there is a standard non-parole period, I am required to have regard to s 54A and 54B Crimes (Sentencing Procedure) Act 1999. In the context of assessing the objective serious of the offending, I am required in regard to s 54A(2) to note;
"that the standard non-parole period represents the non-parole period for an offence in the Table to the Division that taking into account only the objective factors, affecting the relative seriousness of that offence, is in the middle of the range of seriousness"..
Section 54B(2) is more particularly concerned with the fixing of a non‑parole period, being a matter which is not determined solely by the standard non-parole period, but to be determined by regard to all the issues that may arise in sentencing an offender including considerations of aggravating and mitigating factors pertinent to that matter, that is, the fixing of the non-parole period and of course a finding of 'special circumstances' under s 44 of the Act.
In respect of the wounding offence I note for the purposes of assessing its objective seriousness that the character of the wounding is an obviously relevant matter. The number of blows or attempts at causing injury is another relevant matter as pointed out by reference to authority by counsel for the prisoner. I have noted the wound to be a relatively superficial wound, more of a slicing motion than a stabbing motion. But at the same time of course it was a wounding of the victim as she was in control of a motor car.
I have concluded in the circumstances of the matter that the offence is just below the middle range of objective seriousness. The Crown submits it is within the middle range of objective seriousness. I note of course that the middle range of objective seriousness may not necessarily be a "narrow band". To my mind, by reference to issues that arise under s 21A(2), that the offence was one committed without regard to public safety although not an extreme example of that. In this particular matter the offence, that is the reckless wounding offence, was committed in the presence of a child, the seven year old son of the victim and the prisoner, and that in terms of the other matter that arises under s 21A(2)(d), the prisoner had a record of previous convictions and had been sentenced in respect of offences involving serious personal violence.
This wounding has to be seen properly in the context of the previous crimes committed by the prisoner against the victim either contrary to or consistent with the submissions made by counsel for the prisoner. Bearing in mind there is some ambiguity in the wording of the submissions. The reference to or the use of weapons or a use of a knife, the use of "actual violence", these are matters clearly to my mind that arise out of the factual circumstances consistent with the elements of the offence and are not separate aggravating factors. The relevant circumstances of the offending beyond s 21A(2) of the Act are picked up by the operation of s 21A(1).
I am prepared to conclude as a relevant mitigating factor to the assessment of the objective seriousness that the offence was not "planned". The extent of premeditation I cannot reflect upon in the circumstances where I do not know why the prisoner was carrying a knife. I do not know how long the prisoner had the knife in his hand before he wounded the victim. The other relevant mitigating factors that arise in this matter are not pertinent to the assessment of the objective seriousness of the offending. As I said, the Crown submitted that the objective seriousness of the offending fell within the middle range, but in the context of one blow, notwithstanding it was an act that was without regard to public safety, and the character of the wounding, to my mind, the offending falls just below the middle range of objective seriousness.
By reference to the submissions of counsel for the prisoner, the mitigating factors that arise under s 21A(3), I have earlier indicated that the offending was not planned in respect of the wounding offence. In relation to both that offence and with regard to the assault occasioning actual bodily harm offences, I note the prisoner's pleas of guilty are a mitigating factor. I cannot conclude in relation to any of the offences that the prisoner has good prospects of rehabilitation or is unlikely to offend. Certainly, as I said earlier, his criminal history does not assist him and in respect of all offences, and again s 21A(2)(d) of the Act is pertinent because his record of previous convictions relevantly is a "aggravating factor".
The interesting thing about the assault occasioning actual bodily harm offences is that each of them involves the use of a weapon, and to my mind that is an "aggravating factor". An assault occasioning bodily harm of course can be caused by a blow with a fist or a foot but we have in this particular case, in respect of count 2, the hitting of the victim with the ashtray and then the use of the hammer to commit the offences reflected in counts 3 and 5 of the indictment. Again in relation to those offences they were not planned offences. But there was a continuation of that conduct of violence perpetrated against the victim some time before as she was driving the motor vehicle.
With regard to the most substantial matter advanced on behalf of the prisoner concerning his subjective case, the submission is that by reference to the findings of the psychologist or particularly the history of claim by the prisoner to the psychologist, one could approach the matter in the manner that was discussed by Justice Rothman in the decision of R v Lewis [2014] NSWSC 1127 and approved by the Court of Criminal Appeal in the decision of Kentwell v R [2015] NSWCCA 96, where again Rothman J gave the leading judgment but was supported by the learned Chief Justice. The matter that is referred concerns the relevance of "social exclusion" to the sentencing exercise where there is a proven history of not only personal dysfunction but by reason of some characteristic, an inability to properly participate in the community or denied opportunity to participate in the community in the manner that other people may who are not disadvantaged. I do not propose to quote from Kentwell or any other judgments that are helpfully cited by Mr King. But he points out that when a person has a compelling history of social exclusion the implications may be that those individuals may show
"high aggression, self-defeating behaviours, reduced pro-social contributions to society as a whole, and impaired self-regulation".
Well it is certainly clear just on the limited facts that are available to me in relation to this prisoner and both his present and past offending, that the prisoner has a high level of aggression and impaired self-regulation. Rothman J in Lewis, as quoted by Mr King very skilfully, said,
"In the way that Fernando principles have been taken into account in sentencing Aboriginal people in particular circumstances the matters identified by Baumeister and his colleagues may be used to mitigate or fashion an appropriate sentence, but not so as to impose a sentence that does not reflect the seriousness of the offence".
I just pause for the moment to point out that even accepting what the prisoner claims to be his history, and accepting that one can apply principles discussed in Kentwell to persons other than Aboriginal persons, for example, a person such as the prisoner who by reason of a personal characteristic has been subjected to bullying or discrimination in some way, the consideration of those matters in the sentencing exercise is still subject to that very important qualification identified by Rothman J. That the relevance of the situation,
"maybe used to mitigate or (and I emphasise the word "or") fashion an appropriate sentence."
I also emphasise these words;
"but not so as to impose a sentence that does not reflect the seriousness of the offence."
These are finely balanced matters. I appreciate that and I, in my own jurisdiction, had consideration of the matters discussed by Rothman J and others in this regard in one of my decisions. In fact, it is kindly quoted by Mr King. Here, I am prepared to acknowledge the albinism of the prisoner and the potential for discrimination and the like arising out of that to fashion the appropriate sentence. But, again, only to the extent that I do not impose a sentence that "does not reflect the seriousness" of the relevant offending.
The submission is made additionally that the background of the prisoner, to the extent that one can be confident of its detail, mitigates the prisoner's "own moral culpability for his offending." I accept as a general proposition that in a particular case dysfunction and disadvantage in upbringing may mitigate a person's moral culpability. This is the very essence for example, of the observations of the High Court in the decision of R v Bugmy [2013] NSWSC 1885, some of which can have application beyond sentencing of Indigenous offenders. But, in my view, in the context of the evidence available to me and the circumstances of the offending with which I am concerned, are placed in the context of the relationship of the prisoner with the victim, I could not conclude that there are aspects of the prisoner's background that reduce his "moral culpability."
With regard to the issue of totality as it has been addressed in the submissions, particularly, those of counsel for the prisoner, the first point that he made is that I am required to give full regard to the totality of criminality. This principle is one reflected in a range of decisions of the High Court such as R v Johnson [2004] HCA 15; 78 ALJR 616, the earlier decision of Mill v R (1988) 166 CLR 59. The practical application of the totality of criminality was probably best, in my view, encapsulated in Street CJs judgment in the decision of R v Holder (1983) 3 NSWLR 245 where the learned Chief Justice said,
"The principle of totality is a convenient phrase descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, the sentencing judge will evaluate in a broad sense the overall criminality involved in all of the offences and having done so will determine what, if any, downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
I should point out, of course, that Hall J as he then was, presciently identified the principles to be applied in the decision of R v XX (2009) 195 A Crim R 38 particularly at [52], when he pointed out that there was no general rule that determines whether sentences ought to be imposed concurrently or consecutively. This was a discretionary matter for the judge. An appropriate sentence has to be imposed in respect of each offence and the total sentence should properly reflect the totality of the criminality. The question as to whether sentences in respect of two or more offences committed in the course of a single episode of a criminal enterprise or on a particular day should be concurrent or, at least, partially accumulative, is to be determined by the principle of 'totality' and the relevant factors to be taken into account in the application of that principle.
His Honour pointed out that in applying the principle of totality the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offending and so it goes on. In this particular matter one sentence, for example for the reckless wounding offence, does not comprehend the totality of the criminality. For a start, the offending is not one course of conduct albeit that it occurred on the one day and probably occurred within an hour or so of the commencement of the violence towards the victim. I note in relation to the offences that the prisoner chose three separate weapons at different times to cause the offences. This is not a case of three separate injuries being caused by the same weapon in the short period of time. Even then, one might think that the totality of the criminality could not be met simply by one sentence being imposed in relation to one offence.
Thus, I have concluded, notwithstanding the suggestion in submissions by learned counsel for the prisoner that I could make the sentences concurrent, that I should not impose concurrent sentences. The High Court in Pearce v R (1998) 194 CLR 610 particularly [45] pointed out through the majority judgment in obiter observations, bearing in mind Pearce is a conviction appeal, that in sentencing offenders in relation to multiple offences one is required to fix an appropriate sentence for each offence and then turn one's mind to the issue of totality which will include considerations of concurrency and accumulation. Thus there will be a degree of concurrency but also some partial accumulation in relation to the sentences I propose to impose. I bear in mind some sentences will be wholly concurrent one with the other including the drive whilst disqualified offence and the sentences I impose will overtake the sentences imposed by the magistrate to which I made earlier reference.
I have had regard to the statistics that have been provided by the learned counsel for the prisoner. They provide me with some assistance but only give me an outline of the range of sentences that have been imposed in relation to, for example, reckless wounding post Muldrock v R [2011] HCA 39; 244 CLR 120. They do not provide sufficient detail, even though the sample is quite large (288) of the personal circumstances of the relevant individuals that have been sentenced. Likewise, in relation to sentences imposed in respect of the offence of assault occasioning actual bodily harm in the District Court, they provide a range of sentences in respect of a fairly large sample of 216, but provide little guidance otherwise.
In any event, I have had regard to all that has been put on behalf of the prisoner. I have taken into account, of course, what the learned Crown Prosecutor has put in his short submissions. I believe I have dealt with the particular matters that he has identified in divergence from the matters identified by counsel for the prisoner.
The matters raised "in mitigation" in a general sense on behalf of the prisoner, whilst they may be accepted to some extent, are all matters that need to be considered by regard to their weight and the overall sentencing exercise, bearing in mind the objective circumstances of the offending and particularly the criminal history of the prisoner as it reflects upon the prisoner's past attitude, particularly, towards the victim.
Mr Sinnett, you do not need stand up. I will indicate the sentences I propose to impose upon you now.
In respect of count 2 on the first indictment, you are convicted. You are sentenced to 20 months imprisonment commencing on 6 December 2017 and expiring on 5 August 2019. I decline to fix a non-parole period for that matter.
In relation to count 3, the assault occasioning actual bodily harm matter, you are sentenced again to 20 months imprisonment commencing on 6 June 2018 and expiring on 5 February 2020. I decline to fix a non-parole period.
In respect of count 5 on that first indictment, you are sentenced to 17 months imprisonment commencing on 6 June 2018 and expiring on 5 November 2019. I decline to fix a non-parole period.
With regards to the reckless wounding charge, you are convicted. You are sentenced to a term of imprisonment comprising a non-parole period of two years three months to commence on 6 December 2018 expiring on 5 March 2021. In respect of that sentence, I fix a balance of sentence of two years to expire on 5 March 2023.
In respect of the matter on the s 166 certificate, that is, driving whilst disqualified, you are convicted. You are sentenced to a term of six months imprisonment to date from today, 6 September 2019, expiring on 5 March 2020. In respect of that offence, you are disqualified from holding a motor vehicle driver's licence for two years cumulative upon your current period of disqualification.
Thus, the total sentence imposed upon you is five years three months imprisonment with a non-parole period of three years three months. Those terms are to date from 6 December 2017. I have made a finding of 'special circumstances' pursuant to s 44 of the Crimes (Sentencing Procedure) Act. First of all, the accumulation of sentences is comprised of special circumstances for the purposes of fixing the appropriate non-parole period. I am prepared to accept you need an extended period of supervision to assist you to adjust to community living and to also assist you in relation to matters such as your attitude to violence towards others and your drug use and related matters.
HIS HONOUR: Yes, Mr Crown, is there anything else from you?
BAILEY: May I just say there are no further proceedings on the two counts of common assault which I think were back-up charges on the original indictment.
HIS HONOUR: You accepted those pleas and discharged the indictment but for the reckless wounding.
BAILEY: Yes.
[2]
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: 02 September 2020