R v WOODEN

Assessment

1. Paragraph 50 of the report of Ms Anna Lucas, Psychologist, is as follows: "Mr Wooden's full score IQ as measured by the WAIS-IV would be estimated to be 60. His 95% confidence interval score range would most probably fall within the 57-65 range. This would place his general intelligence in the extremely low descriptive category. His full score IQ suggested that when compared to individuals of similar age his intellectual function would fall below 99.6% of his peers."
2. At paragraph 62 Ms Lucas opines that, "his overall performance suggested the presence of cognitive limitations to an extent which would indicate the presence of intellectual disability. At paragraph 87 she describes the offender as presenting with mild intellectual impairment.
3. In the decision of Tepania v R [2018] NSWCCA 247, Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
4. His Honour a little later on the issue of moral culpability said at [119]: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)."
5. Clearly, given the effect of the decision in Tepania, the issue of the offender's intellectual functioning will need to be factored in to the assessment of the objective seriousness of the matter.
6. As a matter of general principle the offence for which the offender appears for sentence is essentially a result offence. In Mitchell & Gallagher v The Queen (2007) 177 A Crim R 94 Howie J at [27] said: "The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence".
7. A little later in McCullough v R [2009] NSWCCA 94 Howie J (McClellan CJ at CL, Simpson J (as her Honour then was) agreeing) said at [37]: "Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wound are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell & Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]."
8. The offending occurred in the home of the victim and a weapon was used. These are matters of statutory aggravation pursuant to s 21A(2)(eb) and 21A(2)(c) respectively. In respect of the aspect of the weapon see also the decision of Nowak v R [2008] NSWCCA 89. The weapon was obtained from the premises and not taken there by the offender. Given the nature of the weapon - namely a butter knife, which is depicted in a photograph at tab 4 of the Crown tender bundle, exhibit A on sentence - clearly very real force was used in respect of all of the injuries sustained by the victim. This seems especially so in respect of the wound to the neck. It is significant that the offender aimed at the neck of the victim. Mr King for the offender put in submissions that as there is no evidence about the state of the sharpness or otherwise of the butter knife the court could not make any finding as to the degree of force used. Looking at the photograph of the weapon and taking into account the nature of the wounds inflicted, even taking that submission into account, I maintain that some very real force must have been used by the offender in wielding that knife.
9. The offending was unprovoked. The nature of the injuries sustained by the victim has been set out when dealing with the facts. The injuries are serious, noting in particular that the wound reached the carotid artery. Clearly, the victim would have been left with scars at the sites of the various wounds, However, given the state of the evidence before me I could not be satisfied beyond reasonable doubt that the victim is suffering from any ongoing issues or sequelae from the injuries beyond that scarring. For example, there is no medical material as to any complications or sequelae suffered by the victim.
10. The Crown submits in the written submissions, MFI 1 on sentence that the matter is "towards the upper end of the mid-range". In farness the Crown Prosecutor put in oral submissions that those submissions were prepared before he had the opportunity of considering in detail the contents of Ms Lucas' report. Before submissions were taken at the sentence hearing I indicated a preliminary view that given the effect of the decision in Tepania the matter was in the lower end of the mid-range of seriousness. Mr King on behalf of the offender submitted that he agreed with my preliminary view. The Crown maintained in oral submissions that the matter was within the mid-range. In all of the circumstances taking into account the circumstances and the nature of the injuries and the decision of Tepania I maintain my preliminary view that the matter is within the low end of the mid-range of objective seriousness.

Victim Impact Statement

1. The victim has provided a victim impact statement, which is at Tab 5 of the Crown tender bundle, exhibit A on sentence. As such statements often do, the victim impact statement speaks eloquently of the short and long term effects of the offending on the victim. One can only imagine what it is like being told by treating doctors that death during the procedure is likely.
2. While not wishing to in any way deprecate the seriousness of the injuries or the effect of those injuries on the victim, without anything further from treating health professionals - noting the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8 - I could not be satisfied beyond reasonable doubt that the victim sustained substantial emotional harm. The physical nature of the injuries is taken into account in the assessment of the objective seriousness of the offending. The effect of the crime on the victim is taken into account by virtue of consideration of s 3A(g) of the Crimes (Sentencing Procedure) Act 1999.

Criminal History

1. The criminal history of the offender is substantial. The Crown submits (MFI 1 on sentence) that the principles enunciated in Veen v The Queen (No. 2) (1988) 164 CLR 465 are enlivened.
2. Going back to his juvenile history, the offender has matters of violence including assault occasioning actual bodily harm and assault police recorded against him. As an adult the offender has been convicted of numerous matters of violence including common assault, assault police, assault occasioning actual bodily harm, violent disorder, resist police, intimidation and malicious wounding. Of particular significance so far as the criminal history is concerned are sentences imposed in the District Court on 20 February 2012 for two counts of wound with intent to cause grievous bodily harm, four counts of assault occasioning actual bodily harm (one of which was on a Form 1), one count of Act with Intent to Influence a Witness and two other matters on a Form 1. As best as I can discern from the record and the remarks on sentence that are at tab 10 of Exhibit A on sentence the total effective sentence was from 16 December 2009 to 15 May 2017.
3. Mr King recited that part of the judgment in Veen (No. 2) of Mason CJ, Brennan J (as his Honour then was), Dawson & Toohey JJ at pp 477-8: "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."
4. Veen v The Queen (No 2) was decided well before the insertion of s 21A(2) into the Crimes (Sentencing Procedure) Act. Relevantly, s 21A(2)(d) of that Act provides that an aggravating factor to be taken into account in determining the appropriate sentence is: the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
5. However, as I understand the state of the law on the issue before s 21A(2)(d) of the Crimes (Sentencing Procedure) Act is applied contrary to the interests of an offender the criminal history must be one that would enliven the principles in Veen v The Queen (No. 2) and McNaughton v The Queen (2006) 66 NSWLR 566.
6. I note the effect of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. The matter for which the offender appears for sentence is a serious personal violence offence. The offender has been convicted of a number of other such offences. The Crown Prosecutor helpfully reduced those to a document which is marked MFI 2 on sentence.
7. I did not understand Mr King to submit that the principles as enunciated in Veen (No. 2) were not enlivened in this case. He did submit however in effect that the issue of intellectual impairment cancels out the impact of the effect of Veen (No. 2) being enlivened. The Crown submitted that Veen (No. 2) still had work to do in the present matter, in particular noting the issue of the offender also being under the influence of illicit substances at the time of the offending (paragraph 67 exhibit 1) and noting the need for protection of society.
8. Given the extent of the criminal history and the nature of the convictions, in particular those matters for which he was sentenced in 2012, this is one of those rare matters where the principles in Veen (No. 2) are enlivened. Considering the offender's criminal history I am of the opinion that the offence for which the offender appears for sentence illustrates a continuing attitude of disobedience to the law and accordingly, retribution, deterrence and protection of the community will have more of a part to play in the determination of the ultimate sentence to be imposed. However, in this matter the effect of the decision being enlivened is ameliorated to a very large extent because of the issue of the offender's low level of intellectual functioning.

Subjective case for the offender

1. No oral evidence was given or called on behalf of the offender; however Exhibit 1 on sentence is a report by Anne Lucas of Duffy Robilliard Psychologists. Paragraphs 1 to 4 inclusive set out details of the offender's formative years, including that his parents separated when he was about 6 or 7 years of age and he was thereafter raised by his father who is described as "an emotionally distant individual". His father drank heavily and worked long hours. The offender left home when he was 13 and was thereafter living on the streets. He commenced using alcohol and drugs when he left home.
2. Mr King argued at the sentence hearing that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 were enlivened, thereby further reducing the offender's moral culpability. The Crown submitted that there was insufficient material to permit the court to make that finding. After consideration I agree with the Crown. However, even if I am incorrect in that finding, given the extent of the material the practical effect of a finding that Bugmy was enlivened would be negligible at best.
3. Ms Lucas' report goes on to observe at paragraph 10 and continuing that the offender has had limited education and was in special classes at school. He has had limited experience with employment and he conceded that he had been unreliable because of substance abuse.
4. According to the report, exhibit 1, the offender has on two occasions sustained substantial injuries as a result of assaults. He has been on methadone for opiate addiction, which it would seem goes back to his teenage years. The offender uses illegally obtained buprenorphine in custody, which has resulted in a number of disciplinary infractions while the offender has been in custody. The report sets out at paragraph 26 that the offender suffered from serious opiate withdrawal.
5. The report goes on to observe that the offender has been a user of illicit substances for many years and that he feels incapable of coping without substances. He was unequivocal that he would not be interested in undergoing any residential rehabilitation treatment.
6. The offender did not present with or describe symptoms associated with psychosis at the time of the assessment by Ms Lucas - see paragraph 38.
7. I have already set out paragraph 50 of the report in dealing with objective seriousness of the matter. As I understand it, the opinion that the offender's level of intellectual function would fall below 99.6% of his peers is that only .4 of one percent of his peers would be functioning at a lower level.
8. A little later in the report at paragraph 62 Ms Lucas opines that, "his overall performance suggested the presence of cognitive limitations to an extent which would indicate the presence of an intellectual disability. However towards the end of the report at paragraph 87 she opines that while presenting with the intellectual impairment the severity of the impairment (mild) would not be considered to be of such extent to imply that the offender would lack comprehension that his violent activity was wrong.
9. In Muldrock v The Queen [2011] HCA 39 the court said at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
10. Clearly, the level of intellectual functioning and the effect on the moral culpability of the offender is a significant factor in determining the appropriate sentence in this matter. The sentence that is ultimately imposed would have been longer but for the issue of the intellectual functioning of the offender.
11. However, I also note the submission of the Crown that the offender was affected by illicit substances at the time of the offending and that there is nothing really in the report that addresses the interaction between the affectation by substances and the intellectual impairment.
12. Ms Lucas (at paragraph 70) sets out that the offender is in the above average range for further similar offending. I observe that that is consistent with the offender's record. In these circumstances I could not find on balance that the offender is unlikely to re-offend.
13. Ms Lucas identifies (paragraph 91) a number of issues for the offender which would be important to lower his risk of future offending, namely substance use, understanding of violence, modulation of emotional stress, communication and problem solving. She goes on to observe that to be eligible for entry into the violent offenders programme the offender will first of all need to overcome substance abuse issues. It seems that the offender shows little enthusiasm for so doing.
14. Those issues are also relevant to the issue of the prospects of rehabilitation. The offender continues to use illegally obtain buprenorphine in custody. He has been dealt with in respect of a number of disciplinary matters while in custody. There is also the issue of his resistance to full time residential rehabilitation. I could not be satisfied on balance that there are good prospects of rehabilitation. Indeed, on the available material, any tribunal would be very guarded about prospects of rehabilitation.
15. On this issue Mr King submitted that there are perhaps some prospects of rehabilitation down the track. However, Ms Lucas at paragraph 93 of her report is quite clear that the offender will first of all need to overcome his substance abuse issues. I maintain my finding that any court would be very guarded in making a finding about prospects of rehabilitation of the offender.
16. There is no material before the court on which I could make a finding on the balance of probabilities that the offender is remorseful. I note that Mr King on behalf of the offender did not argue otherwise. The Crown submitted, correctly that there was no material on which the Court could make a finding of remorse.
17. Despite the guarded prospects of rehabilitation there is still a justification in my opinion for a finding of special circumstances. Given the offender's intellectual capacity he will need extensive and intensive assistance to re- integrate appropriately into the community including assistance relating to his use and abuse of substances. The offender was sentenced to a non-parole period of 4 months with a total sentence of 8 months to date from 1 September 2018. The issue of partial accumulation of sentence is also a reason for a finding of special circumstances although that issue is certainly not significant in this case.

General Remarks

1. As I indicated when dealing with the criminal history, at Tab 10 of exhibit A on sentence is a copy of the remarks on sentence of his Honour Judge Puckeridge QC of 12 February 2012. At the sentence hearing of the present matter Mr King on behalf of the offender submitted that there was no material before his Honour relating to the intellectual functioning of the offender. A close reading of those remarks would seem to support that submission.
2. Mr King submitted that a copy of Ms Lucas' report be annexed to the warrant that accompanies the offender back to custody. I agree that that would have utility. The parole authorities and the Department of Community Corrections would have that report and be aware of the issues of the intellectual functioning.
3. Mr King also submitted that I should consider the statistics kept by the Judicial Commission. The submission continued that 21% of all offenders receive a total sentence of 6 years. Further, the non-parole periods vary from 6 months to 10 years with approximately 16% of offenders receiving a non-parole period of 3 years.
4. The Crown submitted, correctly in my view, that the statistics are a "blunt instrument" and of limited utility particularly in a case such as this where there is such a wide variation in the conduct and consequences contemplated by the section. I have looked at the statistics and considered them however, I also warn myself about the use of the statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and in particular Brown v R [2014] NSWCCA 215 per Garling J at [81]. I also note the comments of Bathurst CJ in SS v R [2016] NSWCCA 197.
5. The Crown raised the issue of institutionalisation so I will deal with that issue. Although no submission was made on behalf of the offender I acknowledge that there is at least the possibility that he is institutionalised or he is in great danger of being institutionalised. The Crown referred me to what Johnson J said in Jinette v R [2012] NSWCCA 217 at [103], namely: "The more accurate way of characterising the Applicant's position with respect to institutionalisation and "special circumstances" is to take into account the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend. This approach does not involve a somewhat unrealistic suggestion that institutionalisation can be avoided. Rather, it acknowledges the fact of institutionalisation, and seeks to reduce the adverse consequences of that state of affairs. In my view, this better reflects the practical reality of the Applicant and his case."
6. I also note the decision of Beale v R [2015] NSWCCA 120. Beech-Jones J said at [69]: "It follows that, even if an offender is either institutionalised or at risk of institutionalisation, it is open to a sentencing judge to nevertheless decline to make a finding of special circumstances and vary the minimum ratio if they are not sufficiently satisfied that a longer period of parole is likely to result in their rehabilitation being successful, especially if the other factors relevant to sentencing do not warrant that course…"
7. His Honour then went to cite the decision of Jinette. While I maintain it is appropriate to make a finding of special circumstances in this matter the reasons have already been given. There was no submission made on behalf of the offender. I do not include the risk of institutionalisation as one of the reasons for a finding of special circumstances.
8. I will need to give proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
9. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non-parole period for the s 33(1)(a) offence, the nature of the offending, the injuries sustained and the need for general and specific deterrence (but noting the impact of the intellectual impairment) clearly no other sentence than a substantial sentence of imprisonment is appropriate. No contrary submission was made.
10. During the sentence hearing I suggested, admittedly somewhat pragmatically, that the sentence should commence on 1 November 2018 given the short sentence already referred to that commenced on 1 September 2018. Neither party wished to be heard against that. Clearly there must be some small degree of partial accumulation of sentences.
11. In all of the circumstances including the offending and the issue of intellectual impairment I am of the opinion that the appropriate starting point for the sentence in this matter is one of 8 years. From that is deducted the 25% for the utilitarian value of the plea making a total sentence of 6 years. For reasons already enunciated there should be a finding of special circumstances.

Orders

1. In respect of the offence to which the offender pleaded guilty he is convicted. Consequent upon that conviction and taking into account the matters on Form 1 the offender is sentenced to a non-parole period of 4 years to commence on 1 November 2018 and which will expire on 31 October 2022. Thereafter there will be a balance of term of 2 years to commence on 1 November 2022 and which will expire on 31 October 2024.
2. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
3. The sentence indicates a finding of special circumstances with the non-parole period being two-thirds of the total sentence. The reasons for the finding of special circumstances are set out within these reasons.
4. Although it is a matter entirely for the parole authorities I recommend that any release to parole be conditioned that the offender obey all reasonable directions as to ongoing treatment and counselling for substance abuse.
5. I direct that a copy of Exhibit 1 on sentence, that is the report of Ms Anne Lucas of 11 June 2019, be annexed to the warrant that accompanies the offender back to custody.

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: 19 June 2019