HIS HONOUR: Trent Keith Wainwright appears today for sentence in relation to an offence to which he pleaded guilty on an indictment presented on or about 20 February 2013 which alleges, or alleged, that he on 16 January 2010 at Mortdale in the State of New South Wales did cause grievous bodily harm to Tamara Lee with intent to do grievous bodily harm to her.
This offence is an offence contrary to s 33(1)(b) Crimes Act 1900. It carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years imprisonment. The offence to which the prisoner pleaded guilty was in discharge of an indictment that principally alleged against the accused that he did cause grievous bodily harm to the victim with intent to murder her.
The prisoner was arrested on 16 January 2010. He remained in custody, as I am informed, until 17 February 2012. He was granted bail and remained on bail, as I understand the matter, until he went back into custody on 25 October 2013. He went into custody on 25 October 2013 because he was charged in relation to an unrelated offence of stalking or intimidating with intent to cause fear to another person.
I did not refuse bail in relation to the current matter until it came before me on 16 December 2013, having the matter before me off and on from the time that the prisoner pleaded guilty on 20 February 2013. I refused bail on the basis that the prisoner had been charged with this other matter. I will deal with the issue of the granting of bail to the prisoner subsequently by the Supreme Court which frankly at the time dismayed me. But I have an understanding now of the reasons the Supreme Court would have granted bail to the prisoner on 6 February 2014.
The prisoner appeared off bail before this Court in March this year and I again refused the prisoner bail. The prisoner has remained without bail since that refusal. I am informed by the Crown, and I accept that up until last Friday from the Crown's perspective solely referrable to this offence, the prisoner has in fact spent two years five months and 12 days in custody. I indicated last Friday, and I reiterate that indication, that I am prepared to take into account as well the period of time the prisoner was in custody bail refused in relation to the unrelated matter between 25 October 2013 and 16 December 2013 when I refused him bail.
I should point out in relation to that unrelated matter, that it was dismissed at the Burwood Local Court on 22 February 2014, I expect that the only reason that he was refused bail in relation to that matter was because he was on Supreme Court bail in relation to the matter with which I am concerned. Of course, since last Friday six days have elapsed. I have calculated, as I have indicated to the parties in the discussion I have just had, that there is on my understanding of the matter, two years seven months and 12 days of custody to be taken into account. That requires the sentence to be backdated to 31 October 2011.
In sentencing the prisoner, of course, I take into account the maximum penalty and the standard non-parole period and I will come back to the issue of the relevance of the standard non-parole period when I address the current provisions that relate to that and decisions such as Muldrock v The Queen of the High Court. I have a statement of facts that was tendered on 14 March of this year. That statement of facts is of some significance in the context of the way in which this case has meandered towards its conclusion.
It should be pointed out, as I will detail in greater particularity shortly, that one of the significant reasons for the delay in the finalisation of this matter arises out of the fact that the prisoner was considered unfit to be tried and for a period of time remained undealt with by the Court system because he was under the auspices of the Mental Health Review Tribunal. But for that intervention, which is no fault of the prisoner of course, this matter would have been concluded a number of years ago.
The victim of the offence that the prisoner has pleaded guilty to was 19 years of age at the time of the commission of the offence. She met the prisoner though a social networking site in early 2009, although the prisoner states that he earlier met her at a wedding in Tasmania. The victim ultimately moved to Sydney from Tasmania in November or early December 2009, lived for a period of time with the prisoner and his mother and then, apparently after some dispute with the mother, the two of them moved into premises at Boundary Road, Mortdale with two people, Nigel Seller and Cindy Feng, who I understand is the owner of the property at Mortdale.
On 15 January 2010 the prisoner told the victim he was going out drinking. He did not want her to come and he did not return home until after 1.30am on 16 January 2010. When he came back the facts state that the prisoner took the victim's phone and started sending text messages and ringing the victim's friends telling them "Don't contact my girlfriend again, I know your address, I know where you live, watch out." The victim attempted to get her phone back but could not and the prisoner continued to call and text people on her mobile phone. The prisoner specifically disputes part of the facts relating to his control of the phone and that phase of the matter. I do not see any significance in relying upon what is asserted in the statement of facts.
The prisoner left the room where this altercation occurred and the victim went to bed. The prisoner returned to the room, turned the lights on and then commenced arguing with the victim. The argument led to the point where the prisoner indicated that he was breaking up with her and she became upset telling the prisoner not to leave her. The victim put her arms around the offender and he yelled at her, "Get out of the fucking house." There is an allegation in the facts that the offender smashed the victim's phone on the ground, which he disputes. The next thing the victim remembers, bearing in mind, as the facts reveal, she lost consciousness within a short period of time after she was told to get out of the house, is that the prisoner pushed her out the front of the house yelling, "Get out of the fucking house." She lost her balance and when pushed she fell down hitting her head on the concrete steps. She does not remember anything after that until she awoke in the hospital.
It is to be pointed out at this stage, in the context of some comments I will make about the prisoner's claims in relation to what happened, that much of what happened was in fact witnessed by other people and the Crown has a body of evidence independent of anything that the victim may have said about the matter to reflect upon the gravity of the attack upon the victim by the prisoner.
Seller and Feng were asleep in their bedroom in the same house. They heard yelling and screaming coming from the victim and the offender's bedroom. Seller told the prisoner to come out of the room but was told to stay out of it, he could hear what sounded like wrestling or struggling on the wooden floorboards. He heard the victim yell out, "Nigel, please help me." Seller went to the kitchen and rang triple 0 and he heard the offender yelling, "Get out of the house." The victim was seen to grip the wooden floorboards with her feet to stop being dragged out. The prisoner asserts that he was not dragging her, he was lifting or pushing her. Mr Seller did not want the prisoner seeing him ring the police. He saw the victim holding onto the entry doorframe. He saw the prisoner push her out of the front door. He then saw the prisoner lift her up under both her armpits and threw her out of the front entry of the premises. He went outside to see. The victim was lying on her left side in a curled position on a concrete driveway by the steps and she was not moving. This is entirely consistent with the circumstances in which the victim lost her memory. At this stage it would seem that in fact the grievous bodily harm upon which the Crown relies had not been inflicted although she had lost consciousness. The prisoner was seen to stand over the victim's head and yell at her.
Ms Feng came out to see what was happening. The prisoner who was wearing shoes then stomped on the victim's head with considerable force. Seller ran at the offender and pushed him away. Feng tried to pull the offender away and she heard him say to Seller, "Nigel, leave me alone if you don't want me to injure your girlfriend", which is a reference to Feng. The prisoner told Seller to stay out of it and he then stomped on the victim's head at least three times. The offender said to Feng, "She's trying to kill me, she deserves this." There is no evidence, in my view, upon which one could act to conclude that at any stage the victim was trying to kill him. Mr Seller continued to try and push the offender away. The prisoner then picked up a clay pot. Mr Seller stepped away. The prisoner stood over the victim and threw the pot down on the victim's head smashing it.
I interpose to say that even if there had been some altercation in the bedroom where the victim had threatened him, such threat as the victim offered to him, that is the prisoner, had well and truly evaporated before she had been thrown out of the house. It is clear on the facts, that when she was stomped on and when the clay pot was dropped on her head she was defenceless. The clay terracotta pot was about 60 centimetres tall, 30 centimetres wide and 4 centimetres thick. The prisoner walked back into the house to his bedroom and started packing some belongings. He yelled out to Feng, "Don't call the police, I don't want to hurt Cindy's family." He said to Seller, "Nigel, I will remember you, you put me in gaol, you put me in gaol, I will come back." This demonstrates whatever alcohol the prisoner had consumed that night, and I accept that he had consumed alcohol and he was to some extent intoxicated, that he still had the presence of mind to be able to threaten other people.
He told Seller and Feng that the victim had tried to "stab me in the bedroom." Whether that occurred I am unable to say but one would not rely upon the representations of the prisoner to be satisfied that it occurred and I repeat what the facts overwhelmingly establish and which the prisoner has never acknowledged and still refuses to acknowledge, that everything he did to the victim was completely disproportionate to any threat that she may have caused him. In any event she was defenceless.
The prisoner left the house. He stopped next to the victim. Seller yelled out, "Trent, stop, you'll kill her." He then stomped on the victim's head again. Again, I point out she was completely unconscious at this point. A number of other witnesses reported in the facts to have heard relevant things said or seen relevant events that support the accounts of Feng and Seller. One person jogging down Boundary Road in Mortdale heard a male voice yelling out, "Trent. Trent. Stop. Don't Trent, you will kill her." Another person saw the victim being stood over by the prisoner with the prisoner holding a ceramic pot in both his hands and throwing it down on her head. That person also saw the prisoner raise his leg and stomp it on the victim's head repeatedly. These people remained, I must say, in the presence of these events until the police arrived.
Another two people, an 18 year old and a 19 year old, apparently unrelated to the prisoner or anybody else associated with this incident, were walking down Boundary Road at the time of the incident. One of those men looked at the driveway of the house and saw the prisoner kicking the victim with his right foot as she was lying on the ground. The other person saw the prisoner stomping on something on the ground repeatedly. They realised after a while that in fact it was a person on the ground and they saw pieces of terracotta rubble lying around her body.
Police attended. Eventually the prisoner was confronted. The prisoner showing absolutely no remorse for what he had done. He said this to the police, "Fuckin dumb bitch deserved it. She came at me with a knife. I'm the only reason she's here from Tasmania anyway. She's a fuckin psycho. I want to go, my mum's coming." The prisoner was told he was not going anywhere.
You keep quiet, Mr Wainwright, thanks very much.
Seller and Feng gave police permission to undertake their enquiries and the facts reveal other examinations, including the failure to find any knife or any other items of interest relevant to the claims of the prisoner. There was no knife or similar object found in the room where this dispute started. No knife was found anywhere in the premises that might have been relevant to the events I have outlined. The prisoner was taken to Hurstville Police Station. He declined to be interviewed. He gave no contemporaneous version save for what I have already indicated were the representations he made at the scene. Various enquiries were made both by DNA testing on shoes and the like. There were swabs taken from the prisoner. On the prisoner were photographed a number of scratches to the prisoner's neck, right shoulder and chest.
The broken pot pieces weighed a total of 6.8 kilograms. The average thickness of the broken pot pieces was between 20 and 25 millimetres. Various enquiries were made of the clothing of the victim and that examination reveals items or findings consistent with what the eyewitnesses had observed. The victim was taken away by ambulance after 2am. She was lying in a pool of blood around her head which was estimated to be approximately, as I understand it, a litre in quantity. There were broken pieces of terracotta around her head. Her hair was heavily matted with blood and there was blood on the terracotta pieces and I have seen photographs of the scene where she lay unconscious on the ground. She had major contusions to her face, eyes, ears and nose, and lacerations on her face. Her eyes were completely closed due to swelling.
She was taken to the St George Hospital. Various examinations were undertaken both by X-ray and CT scan. She had lacerations on her scalp, on her face, including a 2 centimetre laceration to the side of the right eye, 3 centimetre laceration to the left eyebrow, a 5 centimetre laceration over the left mandible. She had two teeth that were loose and two teeth that were chipped. The CT scan revealed a facture through the right mandible and an undisplaced fracture measuring 10 millimetres to the left inferior orbital rim, that is the eye socket, with significant facial swelling and haematomas. An operation was performed on the victim to reduce the internal fixation of the right mandible and to repair the lacerations. The victim was on a liquid diet for four to six weeks, unable to open her mouth or chew. A few days after the operation she still had blurred vision and the stitches were eventually removed. The facial injuries were consistent with multiple blows to the face.
There is a report from Dr Kelly Thornbury, a senior resident in plastic surgery, that sets out the detail of the injuries, particularly at para 7 and 8 of the statement consistent with the statement of facts. There is a further report which repeats much of what I have already outlined and some other information relating to medication and the like prepared by the Department of Plastic Surgery and Facio Maxillary Surgery at St George Hospital under the hand of Dr Thornbury which is in accord with the statement that has been prepared.
I have a victim impact statement which I, of course, take into account as required under the legislation. The victim reflects upon the continuing disability that she suffers from and the emotional stress caused to her by the injuries inflicted by the prisoner. My understanding of the matter from the dental report which is attached reflects upon the fact that in December 2013 she continues to have extreme sensitivity in part of her dental structure and the victim will require more extensive treatment, particularly root canal therapy and possible removal of teeth in the future to repair the damage that is immediately attributable to the actions of the prisoner.
I have a report from the Community Corrections Service of the Department of Corrections prepared on 3 June 2014. The prisoner was previously the subject of a bond given to him in 2005. I will deal with the detail of his criminal history shortly. During the course of that supervision from 2005 the prisoner did engage in both psychological and psychiatric treatment, and reports from medical health practitioners that were dealing with him indicated that the prisoner was willing to engage in treatment. There was a breach of the bond but no action was taken. The prisoner committed the current offence when not subject to conditional liberty. The prisoner advised the Community Corrections officer that his relationship with his mother, who strongly supports him, was estranged at times but still intact. The mother reported to the Corrections officer that whilst the prisoner living with her since his release on bail in 2012 was not physically aggressive, he was verbally aggressive but she would wish for him to return to her home on release.
The evidence reveals that since being released to bail by the Supreme Court firstly in 2012, then again by the Supreme Court in 2014, the prisoner has largely been in receipt of a Carer's pension looking after his mother who has a number of issues, including mental health issues. The prisoner gave the Community Corrections Service officer a history of drinking alcohol since the age of 16 but escalating consumption of alcohol occurred when the commenced working in the advertising and sales industry. He said to the officer that he had not consumed alcohol since being charged in relation to this matter. The prisoner made a claim to the Probation and Parole officer that on the night of the offence he had been socialising with work colleagues and had a belief that one of his beverages had been "spiked with an illicit substance." I give no credence to that claim. It is a claim that does not fit with other histories that the prisoner has given in any event.
The Community Corrections officer reviewed the history given by the prisoner of his past diagnosis, which I will deal with shortly, of borderline personality disorder, post-traumatic stress disorder, depression and anxiety. These are largely reflected upon by Dr Jacmon, a psychologist retained primarily by the defence. No medication has been prescribed for these disorders when at large. In custody the prisoner has been prescribed some medication and has been compliant with his medication regime and he, the prisoner, indicated he was prepared to continue with this on his release to the community.
The Community Corrections officer assessed the prisoner as at a medium risk of re-offending with a large number of needs to be addressed, including matters relating to his education, his associations, his consumption of alcohol, his emotional and personal relationships, amongst other matters, his supportive mother and his acknowledgement of his mental health conditions requiring assistance was noted, but he maintained his denial which is described as "categorical" concerning using excessive force against the victim. Another example of the prisoner failing to take responsibility for his conduct.
The facts are overwhelming. Whatever the prisoner would say about the matter, he caused serious injury to the victim when she was in absolutely no condition to defend herself. He was considered at risk of reoffending should he consume alcohol and disengage from mental health treatment in the community and the Community Corrections officer said that particular attention on release to parole would need to be taken to his mental health.
The prisoner's criminal history reveals a number of findings of guilt recorded against him since he was a child. I have already indicated to the learned Crown that although there was a finding of guilt when he was 13 in respect of an offence of malicious wounding and for which he was placed on probation, but with the limited history I have of the matter suggests that it is a matter of no relevance in this proceeding save for the fact that it may reflect upon his inability to control himself. It clearly was not a serious crime at the time. He has other findings of guilt in the Children's Court in relation to damaging property and resisting police.
In 1998 he was convicted in the Local Court but still as a juvenile of acting in an offensive manner in public. He has a conviction, however, in 2005 for malicious wounding in the Local Court for which he was placed on a good behaviour bond, as I said earlier, for a period of two years with Probation and Parole supervision and particularly directions to receive psychiatric and psychological counselling, et cetera. That matter is commented upon the Community Corrections Service. That is the most serious conviction that is recorded. The facts of that matter were provided to me and I will come back to the facts of that matter as they are relevant to some of the matters raised by the Crown in a moment.
The prisoner was born on 15 February 1982 and thus as I would calculate it, was about to turn 28 when charged in relation to the current matter in January 2010. He is the only child of his parents union and the evidence reveals that his mother was the subject of extreme domestic violence, as was the prisoner subjected to violence, and this has had a significant effect upon him throughout his life, particularly in the opinion of Dr Jacmon. Some aspects of the history of course are difficult to gauge given the hearsay character of the representations upon which the information is based. It is conceded in the material that he had behavioural problems at school and this was reflected in the medical treatment he received for what I understand to be ADHD and also for epilepsy. He obtained his School Certificate after changing schools at least a couple of times, leaving school eventually in Year 11 in 1997 to support his mother who had long separated from his violent father. He had a range of occupations. He worked in a computer shop as a sales assistant, worked at a store as a store person in a factory, worked at McDonald's as part of a service crew, worked in a video rental shop. In about 2005 he worked in marketing, as I understand it, for a media firm as an account's manager and this was the time that he increased his alcohol consumption.
Since his release on bail, as I said, he has been on a Carer's pension. He gave a history to Dr Jacmon of sexual assault by a neighbour and family friend when he was aged seven, and also by an older male teenager and other older boys in the neighbourhood. He said he was subject to frequent bullying and assaults at High School. He said he was assaulted with a baseball bat when he was 16. He was also assaulted at a service station in 2002 as the result of which someone was charged and convicted, and subject to another assault in 2002. I note the relevance of these matters to the assessment of Dr Jacmon. One might have thought although his conduct is contraindicative to this. That being a victim of an assault might have caused him to be more hesitant in assaulting somebody else. Dr Jacmon was of the view that these various physical and sexual assaults created a great deal of trauma and harm to the prisoner which was resistant to treatment.
The prisoner has an interest in music and there is evidence of some accomplishment in that regard. He has had other relationships, one with a young woman in 2005 which was described as 'stormy'. He in fact said in his history to Dr Jacmon that he met the victim in 2007 when he was performing as a musician in Tasmania but the renewed the friendship in 2009 and he gave various details of her conduct which I approach with considerable circumspection including claims of infidelity, drug use, violent mood changes and the like. He said that when he was living with her he was meeting her living expenses but the relationship soon destabilised. He said she was always checking on him. She was always enquiring about whether he was being unfaithful to her but he had affection for her which it must said is well portrayed by his conduct on the night of his arrest. He gave a history of matters relating to the issue of the incident the subject of a charge. He said that he had "patchy memories" of the incident.
In relation to the prisoner there have been tendered, apart from Dr Jacmon's report which is a psychologist's report, many medical reports in this matter. Many of these predate the entering of the plea of guilty by the prisoner. A great deal of this material is material that was provided for the benefit of the Mental Health Review Tribunal. The material presents a complex and to some extent conflicting picture. It is very difficult to reconcile the various opinions that are expressed by different people.
The history of the prisoner in terms of medical or psychological treatment, as I said earlier, is that he was diagnosed with attention deficit hyperactivity disorder when he was seven and apparently was given a stimulant which I understand to be Ritalin until he was 14. He was also prescribed medication for epilepsy at the age of seven and has had epileptic episodes over a period of time. In 2005 at the age of 22 he attended a mental health facility in Canterbury in Sydney to seek help with depression and to receive assistance for what were described as post-traumatic stress problems. He was treated with antidepressant and an antianxiety drug and took that medication for a period of time before relying on natural therapies. He had never before prior to coming in to custody on this occasion been diagnosed with a psychotic illness and had no history of conduct whilst psychotic before coming into history.
The assessment of his entry into custody taken by the then treating psychiatrist for Justice Health was that whilst when he came into custody he had persecutory and grandiose views and expressions. His presentations seem to be more related to personality issues than psychotic illness. He was not prescribed any particular treatment and he was eventually cleared, it was said, to return to the mainstream prison population. Although there is evidence that ultimately he received particular classification which I will deal with later on.
He was seen by another psychiatrist who diagnosed an "adjustment reaction." I take to him being in custody as being his first custody of any significance and a "maladaptive coping style." Dr Adam Martin, who reported on the prisoner's fitness to be tried, included specific matters obtained from the Justice Health records. He noted that Dr Dall had recorded the prisoner had presented with memory loss after his entry into custody in the form of "retrograde amnesia" but "was not acutely psychotic." Another doctor, Dr Zhang, noted on 21 January 2010, this is five days after coming into custody, that there was a "diagnostic dilemma" and that the "differential diagnosis might include psychosis."
Dr Dall again noted in February that there was no evidence of psychosis or mood disorder. That his presentation was consistent with a possible "adjustment reaction," a vulnerable personality, with "poor impulse control and maladaptive coping mechanisms." Later on in March the same doctor noted no real psychotic phenomena, no evidence of mood disorder, mild anxiety and distress in relation to events leading to his arrest. He remained highly suggestible with multiple somatic and psychiatric symptoms across many domains. He does not have any symptoms, however, suggestive of any Axis 1 disorder, referring of course to DSM-5 diagnostic criteria. His overall impression was "adjustment reaction, not psychotic, no evidence of mood disorder with a vulnerable personality with maladaptive coping strategies", as he had earlier said. Dr Martin's view was that having regard to the disturbed childhood taken from the history of the prisoner and as well as in adolescence and adulthood, and having come into mental health services from an earlier age with history of epilepsy, it was well known that epilepsy can be associated with psychological disturbance. But there was uncertainty about his diagnosis with references to the possibility of psychotic illness as well as what was referred to by Dr Dall, as the maladaptive coping traits and early maladjustment.
He said in November 2011 that there was an overwhelming impression that his case had diagnostic uncertainty about his psychopathology. He thought at the time that the prisoner's actions were in the context of what he described as "a rage" from a person with a "personality disorder, a tendency to impulsivity, poor coping skills, a history of threats and violence whilst intoxicated, rather than a direct result of psychosis in the context of a schizophrenic type illness". It is that assessment that I agree with in the context of all the evidence.
Dr Nielssen prepared a report in May 2011 directed at matters such as the prisoner's fitness to be tried and or whether he had a defensive mental illness. He thought that the prisoner suffered from a psychotic illness, best described as a schizoaffective disorder with relating features of both schizophrenia and bipolar disorder as well as epilepsy. There is no other evidence in the history to support that conclusion.
This was an assessment made by him at the time of interview, based upon interview and the history of symptoms expressed as recent, including bizarre persecutory beliefs, disorganisation in thinking, mildly elevated mood, et cetera. He noted the history of epilepsy and the history of psychotic illness and reported treatment for a disorder of attention and concentration whilst in childhood. Dr Nielssen made some comments about the complexity of epilepsy, the effect of partial seizures and the like, the possibility of relapsing psychotic illness, secondary to temporal lobe epilepsy.
He also noted the claims of amnesia by the prisoner and said that recovery of memory, which was claimed by the prisoner several months after the events, was "inconsistent with the usual understanding of memory formulation as to the failure to register events because of the effect of seizure activity."
He formed the view that the prisoner was mentally ill at the time of the offence, a claim never made in any Court as far as I am aware, and no suggestion was made in the course of the last 18 months that the prisoner was relevantly mentally ill by any legal representative that the prisoner has had. The doctor expressed uncertainty as to whether his beliefs about the victim were delusional or not. This was a view also commented upon in the same terms by Dr Martin in July 2011 where he reflected upon the claims of infidelity by the victim as being "Not necessarily delusional in origin even if incorrect."
The issue of the victim's infidelity, if that is the correct expression, is of no moment in this case having regard to the conduct of the prisoner to the victim after she was rendered unconscious. Dr Martin was not of the view that the prisoner was mentally ill. He formed the view that the prisoner had reasons for acting as he did, he felt justified in his conduct, he acknowledged he was intoxicated, he acknowledged that the assault occurred during an escalating argument in the background of "volatile relationship" and that "the prisoner had a disposition to anger and threatening behaviour." These aspects of the matter were inconsistent with mental illness. Clearly that is so, having regard to the totality of the evidence, including the medical opinions.
He could not see any evidence of the prisoner being manic prior to the alleged offence, nor any contemporary observations of the prisoner consistent with mental illness and he did not thing the prisoner suffered a major illness at the time of his incarceration. Martin saw the prisoner again in July 2012 and noted the absence of any psychotic features.
Dr White(?) also reported to the Mental Health Review Tribunal. He could not diagnose Mr Wainwright with any Axis 1 condition. He was not suffering any psychotic symptoms at the time of assessment. He thought that any mood instability was more in keeping with that seen with people that had been subject to abuse in childhood and he said that there were borderline personality disorder in the prisoner, instability of mood, instability of self-image, ambivalence in several areas, including career and relationships. He also said, other elements in his personality could include narcissistic and paranoid traits, and these may give rise to the presence of paranoid or grandiose, expression, particularly in periods of extreme stress. The prisoner presented in November 2011 as being persecuted and grandiose but he was still fit to be tried.
I note when he was released on bail he undertook a number of sessions of psychological counselling through Dr Jacmon and responded to that counselling and was diligent in his attendance. Dr Jacmon regarded his reporting and his response as "exemplary" and I have taken that into account. Dr Jacmon presented a further report in March 2014 and his assessment on the history given to him by the prisoner and his clinical assessment was that the offender's day to day functioning was impaired by clinically significant borderline personality disorder, post-traumatic stress disorder, what the psychologist described as "major depressive disorder" and generalised "anxiety disorder."
He noted that borderline personality disorder was a lifelong disorder with no effective treatment other than management. It arose in adolescence and could be a result of childhood sexual assault or violence from his father and violence he saw perpetrated against his mother, as was the symptoms of post traumatic stress disorder. His borderline personality led to an instability in mood, interpersonal relationships and self-image and the PTSD worsened these impairments. He noted that the prisoner's treatment under his care and counselling was of assistance in safeguarding the prisoner against the manifestation of what he called "risky behaviour" and he suggested a future treatment plan based upon what is called cognitive behaviour therapy, the plan that he had undertaken throughout 2012.
This psychologist has treated the prisoner for quite a long period of time and has treated the mother. He noted the dynamic of their relationship revolves around the fact that he was the only person close to his mother and that she had suffered severe psychological trauma stemming from her own violent marriage, and her symptoms served to trigger his own memories of the incidence that he had suffered from as a child. He noted his mother tended to be overprotective and he thought in some ways that she was trying to control him as though he was still a child.
The last piece of evidence, extensive as it is, that I was referred to is a report that was tendered from Dr John Roberts who assessed the prisoner on 11 April 2013 when the prisoner was on bail. Much of that material contained within that report relates to views formed based upon information given by the prisoner. The prisoner gave a history to Dr Roberts in relation to the events giving rise to the charge, claiming that the victim had mental health issues, again, reiterating that she chased him with a knife and other allegations made against her about her conduct without reflecting upon his own conduct. Dr Roberts himself made a reference to the prisoner's "self-righteous justification." He, the prisoner, claimed to Dr Roberts that he could recall the victim falling but that she was still conscious and he claimed, which in my view is certainly observed when one has regard to the totality of the material that the case against him was based upon corruption and that he had been "set up."
He claimed "no recollection" of the incidents for which he was to appear in Court for over six months, but then he said memories came back to him. He said the prisoner was a garrulous person whose manner suggested an attempt to "ingratiate." Sometimes he presented with evidence of possible thought disorder, other times that appeared to be absent. The content of his thinking suggested potentially a delusional state. This is at the time of presentation in April 2013.
Dr Roberts referred to Dr Nielssen's report and he came to the view, ultimately in April 2013, that the prisoner was unfit to stand trial, an issue never raised at any time subsequent to that report being made available to his legal representatives. He claimed the prisoner was then incapable of issuing instructions and made other observations which ultimately would appear to me to be irrelevant to this matter given the matters that I now have to decide. As I said, at the heel of the hunt when it was tendered it posited matters that have never been seriously advanced to this Court since April 2013 and have not been advanced by the herd of barristers that have appeared for him.
Dr Roberts does not express any particular opinions of any value about the prisoner's mental state at the time of the offending, he seems to be concentrating more on the state of the prisoner at the time of presentation. Ultimately, whilst I note what the doctor says, it is of little value in assessing the mental state of the prisoner at the time of the offending.
The conclusion I reach is that the medical material and the view of the treating psychologist speaks of mental and psychological issues that may be seen as relevant to the offending, emanating primarily, from what I see, as his borderline personality disorder and the possible complications arising from the symptoms of post-traumatic stress disorder. The anxiety and depressive symptoms would appear to be reactive to circumstances at the time of the subsequent assessments to the commission of the offence.
There is no contemporaneous observation or record of psychotic symptoms and in my view no reliable evidence of any psychotic illness underlying or causing the prisoner's conduct.
I appreciate it is reported that the prisoner has from time to time had delusional beliefs after the event, but in the context of the observations of the eyewitnesses and the conduct of the prisoner that is established through the facts, the conduct of the prisoner subsequently very much falls within the realm of self-justification and the avoidance of responsibility. This is emphasised by the many versions that the prisoner has given to different people.
If I could turn now to the conviction for malicious wounding. As I said, the facts of that were made available to the Court. I do not propose to go through the detail of it beyond saying that on 27 February 2005 the prisoner was in a hotel, he had an argument with a man when some beer was spilt and ultimately he confronted that man while he held two glasses in his hands. He hit the victim with the two glasses, one at a time, shattering one glass on the victim's head, the victim suffered some lacerations. It would appear the victim and the prisoner were affected by alcohol. It would appear that there was to be fairly said, a degree of conflict between the two of them that was not entirely one sided. The prisoner told the custody officer when he was arrested that he had "lost it" but also said that he had acted in self-defence. Ultimately he conceded to the police that his actions may not have been reasonable.
The Crown submitted that the convictions of the prisoner, particularly, his conviction for this malicious wounding offence gave rise to the consideration that arises in s 21A(2) Crimes (Sentencing Procedure) Act 1999 of an aggravating factor from the fact of previous convictions when being sentenced for a serious personal violence offence. I have had some brief discussion about that with learned counsel, and to be fair, learned counsel for the prisoner has helpfully drawn my attention to the Interpretation Act. It would appear that the use of the word "convictions" is not a literal statement and a single conviction might relevantly serve the purpose identified under subpara (d).
Ultimately, I have concluded by reason of the finding of guilt and conviction for malicious wounding that the prisoner's criminal history does not entitle him to any particular leniency, but I could not conclude, notwithstanding the fact that this is a personal violence offence of a serious character and the other offence was a serious personal violence offence, that his criminal history is one that leads to the aggravation that may be found under s 21A(2)(d). I find this for the reason that it was an offence committed in very different circumstances than the current one and it involved a dispute between two adult males when affected by alcohol. It lacked many of the features that would aggravate the current matter. It would appear not to be in any way related to any psychological or mental condition that the prisoner suffered and it was to be fairly said in the context of his other criminal histories, a singular event some years before this offending. The victim in that other matter was not vulnerable, the offence involved no planning, although it is fairly to be said that there is no planning in the offence with which I am concerned.
With regard to the matters that arise under s 21A(2) I note that the offence was committed against the victim in her home, subpara (eb). On the other hand, of course, it was also the home of the prisoner. I also note that the injury and the emotional harm to the victim has been substantial as the facts reveal without need to rely upon the untested victim impact statement, but of course grievous bodily harm and the natural sequelae of that are very much an element of the offence attracting the relevant maximum penalty in the standard non-parole period. Thus to say, I believe this is not a relevant aggravating factor given that the Court is not to have any additional regard to an aggravating factor that forms and element of the offence. The victim was a young woman, that would not make her vulnerable. I appreciate at the time of the commencement of this assault she was not vulnerable. But it is fairly to be said, that at the time that she was stomped upon and the pot was thrown against her head, she was clearly vulnerable because she was unconscious and that is a matter that speaks eloquently in the facts that are provided and one does not have to turn to s 21A(2) to reach that conclusion.
With regard to mitigating factors that arise under s 21A(3) Crimes (Sentencing Procedure) Act, the primary mitigating factor is that the offence was not part of a planned or organised criminal activity. It clearly was, on the part of the prisoner, a loss of control, if not spontaneous, certainly reactive to a domestic dispute. I am not in any way indicating at all that the prisoner was justified in using any violence against the victim, nor that any violence is ever justified in the course of a dispute, such as he and the victim had.
In any event, the prisoner's reaction to whatever claimed provocation of the victim was clearly completely disproportionate. Pushing her out of the house may be one thing. As she fell and struck her head on the steps that was not an intended consequence by the prisoner. But the evidence is overwhelming that from then on the prisoner acted deliberately in the face of pleas by people to stop. He acted deliberately in stomping on her head and hitting her with a clay pot when she could not protect herself.
In any event, the other mitigating factor is the plea of guilty. For that, the prisoner is entitled to a discount, in my view, of 10%. The Crown suggested the range of discount available under the 'guideline judgment' of R v Thomson; R v Houlton (2000) 49 NSWLR 383 was between 5 and 10%. It was acknowledged in submissions by Mr Ozen that the discount would be at the lower end of the discretionary range. This is a matter where the prisoner pleaded the day after the trial was to start. In my view, in accordance with the guideline judgment of R v Thomson; R v Houlton given the discretion that exists, a prisoner should receive the benefit of the discount of 10%, recommended within the guideline by the Court of Criminal Appeal, notwithstanding what has happened since the plea was entered.
With regard to the issue of remorse, in my view, the prisoner has not provided evidence that he has accepted responsibility for his actions. He barely acknowledges the injury, loss and damage that has been caused to the victim, nor has he endeavoured to provide any reparation for damage or loss suffered by the victim. He has written a note to the Court and through his counsel has expressed his regret. But this expression of regret is not timely, it is incomplete in the context of the prisoner's other conduct in the course of the proceedings, and it is to be borne in mind, of course, the contemporary remarks he made proven by independent witnesses that he thought the victim deserved what she got.
I wish to deal in this context with the history of the matter, some of which I have earlier referred to. Whilst the prisoner pleaded guilty on 19 February 2013, since that time the delay in the matter has largely been contributed to by the conduct of the prisoner. The prisoner filed a motion and sought to rely upon some evidence in support of that motion to go behind the plea of guilty. The case was delayed time and time again whilst that evidence was gathered. In part, the fault may not have been with the prisoner of course, it may have been with his legal representatives. But be that as it may, ultimately on 16 December 2013 the prisoner withdrew his application and it never was determined by the Court, the Court was quite satisfied that he withdrew that application voluntarily. The matter was then ultimately adjourned until March 2014.
The statement of facts which was tendered on 14 March 2014 the prisoner had ample opportunity to read through and comment upon as I noted last Friday.
In fact the exhibit was marked by him in his handwriting and I faithfully recorded on the exhibit the matters that the prisoner identified that were "in dispute", or with which he "disagreed." The matters that he either disputed or disagreed with were relatively minor matters. They are so minor I have no need to rely upon the Crown's version in that regard. The document that eventually settled in my own hand was checked with both the Crown and the defence. The prisoner had been given a copy of the statement of facts and was able to mark it freely. The matter was then further adjourned for reasons that were not the fault of the accused. One of those adjournments was because counsel for the prisoner fell ill. Then the matter was adjourned for a further two months whilst I was out of the jurisdiction and that is a delay I regret.
When the matter came back before me last Friday on 6 June the prisoner appeared, as I have earlier mentioned, represented by at least the third barrister that has appeared for him in front of me, and at least the third solicitor since the matter came before me last year. The prisoner had written a letter addressed to the Court, a copy of which I gave back to his counsel. He had not seen it. I looked at the letter in anticipation of it being acted upon by the prisoner. That letter addressed to the Court and delivered to my chambers, without any solicitation on my part, generally indicated that the prisoner wanted to vacate the plea of guilty and also asked me to disqualify myself. Ultimately, learned counsel for the prisoner pressed the issue of further consideration of the circumstances in which the plea of guilty was entered, or particularly the facts were tendered, the application for me to disqualify myself contained within the document was not pressed.
In relation to this matter I was told it that it was desired to adduce evidence or to find evidence that may be available from two medical practitioners, including Dr Roberts, that when the prisoner appeared at Court on 16 December to withdraw his application to vacate the plea of guilty he was in no mental state to make that decision. I was not prepared to adjourn the matter any further. Given the unconscionable delays that have occurred up until the present time it was not appropriate. But there are other reasons for refusing the application. One of the matters counsel for the prisoner wanted to raise with the Court was matters arising out of an opportunity for him not having been in Court to check the transcript of events that happened in past proceedings. The learned Crown Prosecutor, in my view, had a recollection of relevant events in accordance with my own. As to the claim that there may be medical evidence relevant to the issue of whether the prisoner was fit to instruct his counsel to withdraw his application to go behind the plea of guilty, I was of the view that no adjournment should be granted to pursue the matter on a number of bases.
Firstly, although I am not a medical practitioner, when he appeared on 16 December 2013 the prisoner gave absolutely no indication of any mood disorder or mental instability or any incapacity to understand what was going on in Court or to respond to questions directed at him by myself. There was nothing in his behaviour whatsoever to suggest any instability at all. Throughout the proceedings, knowing the background of the matter, I have been concerned to ensure the prisoner understood what was happening and understood the effect of matters conveyed to me by his counsel. The fact that it was suggested he might not have been able to appreciate the proceedings on 16 December, or lack capacity to give instructions to have his application to vacate the plea withdrawn was undermined by his conduct on 14 March 2014. He was here in Court when the Crown tendered the statement of facts. As I said earlier, he was given an opportunity to read through the statement of facts, he gave indication of what he disagreed with. I agreed in his presence to mark those matters on the statement of facts and I have already made comments about that matter.
No indication was given on that date by the prisoner, who is quite capable of speaking from the dock and has done so throughout the proceedings or through his counsel, that he would wish to withdraw his plea at that point or expressed any lack of understanding of what was happening at that particular point of time.
One matter relied upon in support of the application for the adjournment was a letter apparently written by one of the solicitors for the prisoner to the DPP in March 2014. That letter is an exhibit in this Court. As I pointed out to counsel for the prisoner, most of it is unintelligible. But what I can discern from the letter refers to nothing about the prisoner's mental state or any of the differing diagnosis that indicated on the part of the prisoner an understanding of the effect of his plea or his withdrawal of his application to go behind the plea of guilty.
It seems to me, with respect, having regard to the overall history about which I am aware, and which his counsel now appearing may not be aware, that the prisoner has continually sought to delay these proceedings. Whether he is a procrastinator, a prevaricator, a dissembler of the facts and the truth, or simply a time waster and a responsibility avoider, it is difficult to conclude. But with the greatest of respect to him the tactic of seeking to go behind his plea of guilty was, with the wisdom of hindsight I now have and my knowledge of all that has gone before today, in my view a deliberate attempt to delay the inevitable and a deliberate attempt by him to avoid responsibility for his actions which he has continued to do by the various claims he has made, including a claim of a lack of memory of relevant events. This was demonstrated by the claim through his counsel that he disputed matters claimed to have been said to him by the Community Corrections officer reported in the Community Corrections report in the section under the heading "Attitude to Offending."
As I said earlier, I do not have a transcript of the proceedings last Friday. But initially counsel for the prisoner, as I understood it, obviously on instructions because the prisoner was very vociferously shouting instructions from the bar table and also had the opportunity to confer with his counsel for half an hour in private, indicated that he did not agree with what the Corrections officer had written. When I quizzed his counsel about what precisely was the character of the dispute, believing not unreasonably that the officer would not invent an entire account by the prisoner of his attitude to the offending in the report, it turned out that the main area of dispute was the claim in the report that the prisoner "categorically denied assaulting the victim with the pot plant or stepping on her head."
It was put to the Court that the position of the prisoner was that whilst he took responsibilities for his actions he had no memory of hitting her with the pot plant or stomping on her head. I do not accept that.
The prisoner has not given evidence before me. These claims are untested, as are his claims of regret. I appreciate much of the prisoner's conduct is very much dictated by the conditions that are outlined in the various reports and his inability really to, in some respects, control himself in some situations. It was conceded when counsel was pressed on the matter in relation to the issue of lack of memory, that the prisoner did have memory of other events leading up to the aspect of the assault. When a judge is confronted with a person who has memory of particular events and then conveniently does not have a memory of the key events, one must approach those claims of lack of memory with considerable circumspection. One does not need an expert to assist one in relation to the question of memory formulation, but I do note that the query that even Dr Nielssen had about the prisoner's claims of lack of memory recovery.
As I said earlier, the prisoner wrote a letter to the Court reiterating that he took responsibility for his actions and said he was sorry. I have a taken that matter into account and it may well have been written in good faith at that time but as I said it very much is at odds with the way the matter is conducted, it is very much at odds with some of the contemporaneous expressions of the prisoner and some of his comments made to various doctors over a period of time.
The prisoner is captive to his psychological or psychiatric conditions from which he does or may suffer. But in light of what happened last Friday and the specific instructions that were conveyed to me by his counsel I detect in the prisoner's prevarication and delaying tactics an element of deliberation and an unwillingness to face the reality of the situation, notwithstanding the claims in his note. The prisoner has fully understood the fact that he faces a significant period of imprisonment and it is in this context that one looks at the circumstances in which he went to the Supreme Court and sought bail knowing the basis upon which bail had been refused by me.
I understand, of course, on the part of the prisoner there will be a degree of frustration from delay, a substantial body of which, I should say is not of his making. I will take the delay into account, the delay caused by the issue of his fitness to be tried and some of the delay occurring up to the present time. Many of these matters I have already outlined and some delays were caused by the charging of the prisoner with another offence which was dismissed. It is correct that a delay in sentencing is a relevant matter to be taken into account. It leaves a prisoner in a state of uncertainty but the prisoner has also contributed to that situation. I have already dealt with the issue of the time spent in custody.
With regard to the submissions of his counsel, he accepted in his submission that it was an extremely serious offence, having regard to the extent of injury to the victim. I was asked to take into account the state of intoxication and what was regarded the underlying medical condition of the prisoner. Much reliance was placed upon the analysis of Dr Nielssen and some of the findings of Dr Martin. It was submitted at the time of the commission of the offence that the prisoner was "not thinking straight."It was submitted that he had not formed an intent to hurt his partner any lengthy period before the relevant events. I certainly accept that latter submission that his intention to hurt his partner which he has admitted was formulated a brief time before he executed the crime. As I have said, the prisoner did not commit a planned crime and he acted in a violent way for a limited period of time.
As for subjective matters, submissions were made about the plea of guilty which I have already dealt with, the mental state of the prisoner which I have already summarised and discussion was had about the observations of Chief Justice Gleeson in Engert, the 1995 decision of the Court of Criminal Appeal which I will deal with shortly. It was submitted that the prisoner was not at risk of further offending because he was responsive to medication and if able to avoid intoxication he can proceed with his rehabilitation, as reported by the Community Corrections officer. With regard to the previous conviction for malicious wounding, it was pointed out it was a different category of offending. By my earlier findings, I have taken into account what counsel has put to me. Reference was made to the circumstances of the prisoner's custody, both by way of reason of media, attention to the case and by reason of his classification. If I may deal with that matter just briefly.
Today I have been given additional evidence that shows the prisoner over a period of time has been classified as SMAP, that is, a Special Management Area Placement. I am told from the bar table, and I accept, that this is some form of protective custody and there is a record that I have seen in the exhibit tendered showing that the prisoner in April was in a particular POD where people were held with three levels of protection. I accept by definition that the prisoner's presence in protection will place restrictions upon his movement and restrictions upon his access to programs. This is a matter of course that has been the subject of attention by the Court of Criminal Appeal on a number of occasions.
With regard to the issue of being in protection, in the decision of Totten ([2003] NSWCCA 207) the Court of Criminal Appeal held that the sentencing Judge had erred in failing to take into account the circumstances that at least part of the sentence, and the prisoner already has served part of the sentence, a substantial part of it, in protective custody. This is relevant both to the determination of the length of the sentence and as to whether there were special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. Justice James in that judgment said;
"Notwithstanding the difficulties in a sentencing judge taking into account, especially without the benefit of evidence, a circumstance that part or all of any sentence of imprisonment imposed is likely to be served in some form of protective custody, I consider that it is a well entrenched principle that it is a circumstance that a sentencing judge should take into account, in favour of the prisoner, both as to the length of the sentence and the non-parole period."
Of course the weight to be given to the matter will depend on the facts of the particular case, as was discussed in many of the other cases, including Mostyn and El Hani, two decisions from 2004.
Of course the evidence is incomplete, although the prisoner's legal representatives have done everything they can within their earthly power to provide evidence to the Court over a short period of time. One of the difficulties for a sentencing judge is, of course, I do not know what the future holds for the prisoner once he is sentenced and perhaps his protected status will be removed from him, but I can only deal with the matter as the evidence has revealed it to be and I am prepared to give weight to what has been put to me by his counsel in the context of the principles laid down in Totten.
In relation to the Crown's submission, the Crown submitted that there was no causal connection between the mental condition of the prisoner and the commission of the offence. This was an offence, the Crown said, where the real contributing factors were the consumption of alcohol, the argument with the prisoner's partner, a loss of control resulting in sustained violence. If I could just pause for a moment.
Having regard to the medical evidence, pointing as it does in some parts in differing directions, whilst I accept the general analysis of the Crown, one of the issues that I conclude in favour of the prisoner is that contributing to the prisoner's reaction to circumstances, that were not as he would assert them to be, were the underlying psychological conditions arising from both the borderline personality disorder and the history of post-traumatic stress disorder, and his inability thus to control himself. The Crown submitted that a substantial sentence is required both as to the head sentence and the non-parole period. I did not hear the Crown to argue against a finding of special circumstances as was submitted by the counsel for the prisoner, and I have already referred to the Crown submissions on the discount.
Neither counsel specifically addressed the issue of standard non parole periods and the current legislation in relation to this matter. In fairness to counsel after several hours, or at least two hours, of toing and froing, the submissions of the parties did not really start until about 4 o'clock and did not conclude until 4.40pm on the Friday afternoon. The failure to address that matter was more the fault of the Court in not asking the right questions. I note the Crown submissions that the attack was a vicious attack even if not planned upon a defenceless person, and I have already made comment upon that and I have already commented upon the issue of the criminal history being an aggravating factor or not.
Turning to the standard non-parole period. Section 54A(2) now provides that for the sentencing of an offender a standard non-parole period represents the non-parole period for an offence in the Table of the Division, taking into account only the "objective factors" affecting the relative seriousness of the offence in determining whether the offence is in the middle range of objective seriousness. Section 54B(2) provides;
"The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender."
A recent addition of the Judicial Bulletin in commentary notes that the new legislation which came into effect on 29 October 2013 emphasises that the statutory scheme is concerned with an assessment on facts relating only to the "objective factors" and those matters are in accordance with the decision of Muldrock v R are matters which do not involve any matters personal to a particular offender.
In Mr Muldrock's instance (Muldrock v R (2011) 244 CLR 120), he was mentally disabled. The Court held that moral culpability was a matter to be considered in sentencing independently of the objective facts and could be a matter of significance as was identified in Muldrock at [58] and recently discussed in the decisions of Bugmy v R [2013] HCA 37, particularly at [44] - [46] and Munda v Western Australia [2013] HCA 38 at [57]. In Muldrock it was held by the High Court that the offender's mental condition limited his moral culpability and required less emphasis to be played on denunciation and retribution, and in some respects that aspect of the matter reflects what was said in decisions of the Court of Criminal Appeal that have been summarised in the decision of Hemsley in 2004 and De La Rosa, a Crown appeal from 2010. As the authorities have held since the new legislation has come into force, the new legislation evinces an intention on the part of the legislature that the standard non-parole period is not to have determinative significance on the sentencing exercise but it is a matter to be taken into account in determining the appropriate sentence with the holistic approach recommended by the High Court in Markarian v R, (2005) 228 CLR 357 at [51].
I was referred to the decision of Elturk [2014] NSWCCA 61 in relation to the issue of moral culpability of the prisoner when a person's mental state, particularly mental instability, arises for consideration as being relevant to sentencing. In that judgment the Court of Criminal Appeal, consistent with Muldrock and other decisions held that whilst an accused had expressly waived his claim of a plea of not guilty by reason of mental illness touching upon his criminal responsibility, he had not waived his right to have his mental illness considered as a causal factor in the commission of the offence.
"His mental state at the time of offending was relevant to the assessment of his moral culpability and the objective seriousness of the offence."
This proposition I naturally accept.
In that matter, however, there was absolutely no doubt that the person was suffering from a major mental illness, or a relapsing psychotic illness with features of schizophrenia and bipolar disorder. I point out that the learned sentencing Judge disavowed the causal connection of the mental illness. He sentenced the prisoner to a total of eight years imprisonment. That sentence was reduced by the Court of Criminal Appeal to six and a half years imprisonment.
In that matter the applicant had a history of mental illness for many years. His mother suffered from schizophrenia which had been diagnosed upon her when the prisoner was an infant. The prisoner or the appellant in that matter had approximately seven admissions to psychiatric hospitals in various states, including two as an involuntary patient and had for a long time been prescribed antipsychotic medication. Some hospitalisations were for up to three months. He was receiving before he committing the crime for which he was convicted long acting injections as a condition of a community treatment order. All of these features, of course, are absent here.
He attacked his father, who described him at the time of committing the offences, having "an emotionless and expressionless face, appearing as if he was in a trance." The prisoner told his father he had stabbed him with a knife because he had to do it because he was "the devil." The prisoner had not slept for four nights preceding the commission of the offence, he was bizarre and unfocussed. He told interviewing police that he had a sickness in himself and he could not control himself.
All these matters might be compared to what can be seen of the state of the prisoner. The prisoner in that matter had in the diagnosis of the doctor who viewed the electronic interview, a "chronic mental illness."
The Court cited what the Muldrock v R majority had discussed (at [54]) about moral culpability and that assessing the moral culpability of the prisoner was an important task. If, in the case of Elturk, his moral culpability was significantly diminished by reason of his illness, in this case whilst I accept that there is some diminution of moral responsibility in the context of psychological conditions in part caused by events beyond the prisoner's control, the diminution is slight.
I know the matter of Elturk was not necessarily raised for comparative purposes, I have already referred to the fact of the sentence being reduced from eight years to six and a half years. The matter to which the prisoner pleaded guilty was, if not identical, a similar offence to the current offence with the same maximum penalty and the same standard non-parole period.
In that regard I note at [41] of the decision of Elturk a discussion by the learned President of the Court of Appeal of the statistics provided to the Court concerning the sentencing for offences under s 33(1)(a) Crimes Act 1900. Of course this offender pleads guilty to an offence under s 33(1)(b). Those statistics revealed that in the period from February 2008 to June 2013, 85% of persons sentenced for an offence for an offence under this provision received a sentence of less than eight years, even with pleas of guilty, and various other observations are made. This was to draw the Court's attention to the fact that the sentence imposed by the learned Judge at first instance was out of kilter, in any event, with the range of sentences imposed for such offending.
I have not been aided by any specific statistics in relation to an offence under subpara (b), but in the context of concluding by reference to the injuries the victim suffered and the lack of planning of the offence that the offence is within the middle range of objective seriousness, perhaps towards the upper end of that but not beyond the middle range, I have at least had some regard to what information is available in the decision of Elturk.
In sentencing the prisoner of course I have had regard to the purposes of sentencing. There is a need for an element of general deterrence and specific deterrence. At the moment I do not believe the community needs protection from the offender and I do not believe the prisoner presents a risk to the victim. I am required to promote his rehabilitation and make him accountable for his actions. This does bring me back, of course, to consideration of the principles that were discussed in Engert and summarised in the decisions of Hemsley to which I earlier referred and De La Rosa.
In De La Rosa the learned Chief Judge at Common Law went into the matter in some detail, but generally speaking there is a range or authority that says that where a person's mental illness or disability contributes to the commission of the offence in a material way the moral culpability may be reduced, there may not then be the same call for denunciation and punishment, or as much weight placed upon the general deterrence and may moderate that consideration.
In this particular matter the condition is not one that calls for a reduction upon the weight to be given to general deterrence, although the moral culpability issue I have already dealt with. I appreciate the prisoner by reason of his personality and the matters adverted to in the medical reports may have difficulties in custody that may not be promoted sufficiently by available resources. I do not believe, subject to supervision, that the prisoner is a danger to the community. On the other hand there is, it must be said in the way in which the prisoner has conducted himself some need to have regard to the specific deterrence of the prisoner by any penalty that the Court imposes. I am required to recognise the harm done to the victim of course and make the prisoner accountable for his crime even if he refuses to take full responsibility.
It is thus, in all these circumstances, that I have concluded that the appropriate penalty to be imposed for this matter with the discount for the utilitarian benefit of the plea of guilty is the sentence of eight years and one month commencing from 31 October 2011. I fix a non-parole period of five years to commence from 31 October 2011 and expiring on 30 October 2016. The balance of sentence will be three years and one month. I have made a finding of special circumstances. The prisoner will need an extended period of time to adjust to community living. He will also need an extended period of time of supervision to assist him in relation to access to mental health and psychological counselling and treatment, and also to receive appropriate direction in relation to the use or misuse of alcohol.
The call for special circumstances as made by his counsel is also supported by the evidence about his current classification. I think the matter, however, is fairly summarised in the Community Corrections report. As to whether the prisoner is released at the end of the non-parole period will be a matter for the Parole Authority.
Thus, the prisoner is convicted. You can stand up, thanks very much. He is sentenced to a term of imprisonment by way of non-parole period for a period of five years to date from 31 October 2011, expiring on 30 October 2016. The balance of sentence will be three years and one month. That balance of sentence will expire on 29 November 2019. Yes. You can take a seat, thanks very much.
Mr Crown, any technical matters?
BOWERS: I've nothing to raise, thank you, your Honour.
HIS HONOUR: Any technical matters, Mr Rosen.
OZEN: No, thank you.
HIS HONOUR: Thank you. Mr Wainwright, you can go with the officers, thanks very much.
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Decision last updated: 23 November 2015