R v Wright

Subjective Case

The offender argued that having entered his plea in the local Court he was entitled to a 25% discount on his sentence. The Crown did not argue against that. In accordance with the CSPA, the discount will be 25%.
The offender has no criminal history. The records did show a matter in the Children's Court however it was submitted, and there was no argument to the contrary, that should not be taken into account. I note that matter occurred when the offender was 13 years old and would place little if any weight on it in any event.
As noted above the offender was 21 years old at the time of the offending. In my view the fact of his youth and a lack of criminal history of any significance are significant matters of mitigation to be taken into account.
Also as noted above the offender gave evidence. He grew up in and around Yamba where the offending occurred. His father died when he was three or four years old by suicide. There was then a person he referred to as his stepfather who was in a relationship with his mother until a time that did not become clear on the evidence. There appears to be a good relationship with the mother's present partner who employs the offender.
The offender left school in 2018 having completed year 10 and has been employed for most of the time since then, beginning at Hungry Jacks and then cleaning jobs before doing landscaping work which he likes and continues.
In 2019 a best friend of the offender died by an accidental overdose of drugs. Another friend after that committed suicide. The offender says that he quit drugs after the first death just mentioned but drank more and then got in with the "wrong crowd" and got back into the use of drugs most particularly it seems the drug Xanax. His drug use worsened after the suicide of his friend.
The offender says that he is happier now being sober and he does not want to be the person that he was when abusing drugs and alcohol. He described his six months in prison as a period when he did have support of other inmates. I gained the impression that period in prison was of assistance to him not only in its deterrent effect but also in some way through that support.
In terms of his drug use history he commenced cannabis at age 13. He says he was bullied at school which led to him taking up with an older crowd and drug taking.
He said he was very sorry for the event of this offending and used the word horrified. He says it was out of character and would not wish it on anybody what he had done. He made an apology to the victim who was in the courtroom from the witness box.
In relation to the knife he said he purchased it two days earlier and had no idea why he had and that he was affected by drugs and alcohol when he bought it. He gave evidence that he was attracted to the knife by the fact that a friend collected "stuff". Whilst I found the evidence of the offender credible, particularly as to remorse and his future intentions, I accept the submission of the Crown as to him being less than frank but only in my view in respect of matters going to the actual offending. I do not accept the offender bought the knife because a friend collected "stuff" and the first time revelation in the witness box of disposing of the knife down the drain also lacks credit. I do accept however the statements of remorse and sorrow and acknowledgement of wrongdoing. In fact I accept his statement that his conduct was out of character and consider that his offending is of a somewhat twofold nature. On the one hand a young man engaging in drug taking and excessive drinking and roaming the streets intoxicated is vulnerable at best and likely at worst to become involved in antisocial behaviour so that this occasion of antisocial behaviour would not be considered to be an aberration. On the other hand, for that anti social behaviour to be transformed into serious criminal conduct of the type that occurred here can in my view be seen as an aberration. I do not consider the offender to be the type of person likely to commit this style offence in the normal run of events even allowing for abuse of drugs and alcohol.
Returning to the offender's evidence he said that he had been drinking and taking drugs the previous two days to the offence and was very intoxicated. I do not take that into account as a mitigating factor. I have canvassed his evidence as to how he felt at the time of the offending when stabbing the victim above.
The offender was in custody for six months and eight days including periods of lockdown which meant being in his cell for 24 hours of the day. In my view that does add to the severity of that period of custody.
In cross examination he was challenged about his frankness with police immediately after the offence. Given he was severely intoxicated, had not yet been legally advised, his youth and the gravity of the situation I do not think that much turns on the failure of the offender to immediately confess to the offending.
He was challenged as to having told the psychologist that he had never taken a knife out before and said that he probably meant it was an out of character thing. It was put to him that he had told others that it was his friends fault and he replied that he took full responsibility for his own actions and full accountability for it. Again determining the appropriate sentence is not aided by what must be a fairly limited examination of what the offender may have told others. There has been expressions of remorse by the offender to various people and in his evidence. I have had the benefit of observing the offender in the witness box. To my mind he very much looked like a deer in the headlights. With all due respect to him he is a fairly unsophisticated and immature young man albeit that he has endured some difficulties that many his age have not endured, namely the death of his father and death of two close friends. I accept his expressions of remorse and consider that they are very genuine even though there were parts of his evidence referred to above that I do not accept. The point of distinction as to what I accept and what I do not accept is that where he was less credible was when tested on what actually happened on the night in connection with the knife. That might arguably raise concerns about insight and appreciating the wrongfulness of what he has done. Taking that into account I remain of the conclusions that I have just expressed favourable to the offender.
The offender relied on a number of testimonials. The first was from Paul Triggs, the offender's mother's partner and the employer of the offender. He says the offending is out of character and speaks highly of the offender as a worker. There is no discussion or insight as to the drug and alcohol abuse of the offender. There was also a reference from Dean Collins who was the father figure of the offender after his father died. He does refer to the substance abuse problems and refers to the loss of the offender's father as being difficult. He speaks very kindly of the offender and notes him maintaining his employment and taking on responsibility following this offending. The third reference was from the offender's mother who notes the offender's remorse and the grief and anxiety it has caused him and that he has now sought the assistance of a psychologist. She refers to the loss of his two friends. These testimonials assist the offender, though I note they are from his mother and father figures. The testimonial of Mr Collins was the most persuasive; it refers to the very matters the offender himself refers to as being significant in his life, there is reference to the drug issues, and support for the good qualities of the offender.
The mother referred to attendances with a psychologist, who is named Zach Jones. Mr Jones provided a report dated 25 May 2022. The offender was referred to Mr Jones on 29 October 2021, so not that long after the offender had been released on bail. That said as I read the report the first attendance was not until 30 November. Since then there have been six sessions. The history given is consistent with what I have set out above and they discussed the offending. The view was expressed that the offender displays good insight and notes that he has been abstinent from drugs and alcohol since custody. He also no longer associates with the peer group involved in the events of the offending. His results to the depression anxiety and stress scale test were largely in the normal range and no diagnosis of mental health illness was made. It does report on the clinical basis that the offender reports persistent anxiety throughout his childhood and teenage years with suggestions of a clinical level of anxiety which may have met the criteria for a diagnosis at some time.
The offender is said to have goals such as improving his fitness and engaging in positive ways socially. He wishes to progress his career in landscaping. It notes the treatment goals are to work towards a greater understanding and framing of his identity in order to resist negative peer influences and to manage anxiety and depression to reduce the impact of that on his life. That the psychologist would say that suggests that anxiety and depression can affect a person in their lives without necessarily being a matter that reaches the level of being diagnosed as a condition. The report is also another source of the evidence of remorse.
Lastly, there was a sentencing assessment report prepared. It notes the offender is currently residing with his mother and siblings. The relationship with them is a good one as I would add is the one with both his mother's past and current partners. It is plain that he has support from his family as well as the benefit of having employment.
In the sentencing assessment report, it is again recorded that he displayed a significant level of remorse. It outlines his substance and alcohol abuse history. It notes the offender acknowledges his behaviour was violent but also notes that he describes his action in self defence a matter which based on my above findings does show a lack of appreciation on the part of the offender of his role in the offending.
Despite that negative, the offender did display insight into the impact of his offending behaviour and acknowledged the impact it would have on the victim both physically and mentally. The offender expressed the desire to participate in any recommended interventions and to carry out community service work. He participated well in the preparation of the report.
The offender was assessed as a low to medium risk of reoffending. He was considered suitable for community service work.
Overall this is a helpful report for the offender. The one contradictory aspect of it is his insistence that the offending was born out of self defence. I do not think that should be taken to be too damning of the offender. On a subjective level he could perhaps consider that he was acting in self-defence given he was at the time fighting a losing fight that he had started, but for the reasons outlined earlier that is not the view the law would take in circumstances such as these.

Sentencing considerations.

The submission for the Crown was that the offending was so serious and the case of such a nature that the sentence must be one which prohibits the imposition of an intensive corrections order. The Crown quite rightly pointed to the facts of these events occurring in a public place, that the offender was the aggressor and the seriousness of the injuries.
Perhaps the most compelling argument for the Crown is that this is undoubtedly an alcohol / drug fuelled act of violence which carries a great need for deterrence. The use of a weapon is also something that demands there be significant deterrence.
For the offender, reference was made to the sentences imposed on the two companions in respect of offences of affray in the Local Court. Both those offenders had prior records and one of them was on a community corrections order at the time of the offending. They received a two-year and ten-month ICO respectively. The offender submits that the above material shows a strong subjective case. It is said that he has good prospects of rehabilitation.
The crux of the offender's submissions was that the matter should be dealt with by an ICO. Reliance is placed on the fact that this young offender has served full-time custody for a period of six months and eight days to date. Whilst it may not have been expressed in exactly these words the thrust of the submission could be taken to be that to the extent that the Crown argues that the offending is so serious that there must be a period of full-time custody then that need has been sufficiently met by the period in custody prior to being on bail. Reference was also made to the bail conditions as giving a basis for backdating the starting date of any sentence to take into account the curfew condition and reporting conditions.
In my view, the resolution of these competing arguments is a finely balanced one. I accept the Crown's argument that this is a grave offence, a matter which was not disputed.
I note the purposes of sentencing are as follows: 58.1. To ensure the offender is adequately punished. 58.2. To prevent crime by deterring the offender and others from committing similar offences. 58.3. To protect the community from the offender. 58.4. To promote the rehabilitation of the offender. 58.5. To make the offender accountable for his actions. 58.6. To denounce the conduct of the offender. 58.7. To recognise the harm done to the victim of the crime and the community.
In this case, it is the purposes of deterrence and denunciation and protection of the community together with promoting the rehabilitation of the offender that require recognition more than the other purposes just identified.
Based on the discussion above and the findings that I have indicated in the course of that discussion the first and most obvious point to note is the grave nature of the s35 offence and the legislature's view of its seriousness as indicated by the maximum sentence and standard non-parole period of 10 years and four years respectively. There are numerous subjective matters which make a good case in mitigation including the 25% discount for the plea of guilty, the absence of any criminal history other than the juvenile matter referred to, a background of the offender which no one suggests reaches the stage or point of social disadvantage but nevertheless shows a young man who has needed to deal with significant stresses in his young life. I find that he has endured bouts of anxiety and depression albeit short of being diagnosable as a recognised psychiatric condition. It is only now with the counselling he is receiving from Mr Jones that those issues are being addressed. I note also that he has now sought to distance himself from negative peer pressure and has in fact been abstinent of both drugs and alcohol since 18 December 2020. Furthermore whilst I would stop short of making a finding that he is a man of good character based only on the say-so of his close family in circumstances where his own background is of associating with antisocial people and engaging in antisocial behaviour of drug and alcohol abuse, I nevertheless formed a view of the offender as a person with prospects of becoming pro social. This is based on the fact that he has maintained employment largely since leaving school in year 10, at least 4 years ago, and the way he has conducted himself since this offending and the support that he does have. I consider that he is unlikely to reoffend and has good prospects of rehabilitation, something demonstrated by the steps that he has taken to date. As noted above I accept his assertions of remorse.
An issue as to quasi-custody was raised. It was the submission of the Crown that the bail conditions imposed in this matter would not justify a finding of quasi-custody. That was based on paragraph 98 of the decision of R v Quinlin [2021] NSWCCA 284. Yet at paragraph 88 of that same judgment reference is made to La v R [2021] NSWCCA 136, which in turn referred to Bonett v R [2013] NSWCCA 234 where it was said, excluding citations: Whether restrictions outside of jail amount to quasi-custody is a question of fact. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However in circumstances where there is an evidentiary foundation for it being taken into account the sentencing judge may be obliged in some circumstances to have regard to it even when not specifically asked to.
In other words there is no blanket or general rule in determining the weight to be given to the harshness of bail conditions but rather it is a discretionary matter to be determined on the facts of each particular case.
In this case the argument for the offender is weakened by the absence of any evidence as to the impact of the bail conditions upon him. There is no dispute between the parties that the curfew condition had been in place since his release into the community on 26 June 2021, a period of approximately 11 months. Accordingly the liberty offender has been restrained in leaving his residence for that period so that it prohibited him going out of an evening.
Whilst that was no doubt considered an appropriate bail condition in the circumstances of this case, given my finding that this case was one of an aberration on the part of the offender I consider it leaves open the bail condition to be considered a restraint on the liberty of the individual so as to justify it in being taken into account in determining the commencement date of the sentence. There is however no evidence of this having any impact on the offender's life, beyond an inference that it meant he could not always do what he wanted. On balance I conclude on the facts of this case any allowance favourable to the offender based on quasi custody is minimal, with the result that I have made no allowance for it.
There is no dispute in this case that both of the offences pass the section 5 threshold so that the first point necessary to determine for the imposition of an ICO is satisfied. The second point is to determine the length of the sentence. In my view it would be appropriate in this case to proceed by way of an aggregate sentence. In my view there needs to be some degree of accumulation given the additional aspect of the section 35 offence, namely the serious injury inflicted, which occurred in the course of the affray. At the same time the two offences plainly arise from the one course of conduct and I consider there should be a significant degree of concurrence in the aggregate sentence.
In my view taking into account all of the above matters the sentence for the section 35 matter prior to the 25% discount should be 3 ½ years so that the term after the discount is 31 ½ months. The indicative sentence for the affray matter, in respect of which there are those sentences of the co-offenders to bear in mind, prior to the 25% discount should be 2 years so that after the discount the term is 18 months. Bearing in mind my comments as to accumulation and concurrency above I consider the appropriate aggregate sentence to be 36 months.
There was brief reference in the course of submissions to the way the court should approach the matter should it emerge that the sentence arrived at exceeded three years but due to the fact that an ICO commences on the date the order is made the sentence could be expressed to be whatever the term was arrived at less the 6 months spent in custody to date. There was no submission by the Crown that would not be the appropriate way to go. I note that case of Mandranis v R [2021] NSWCCA 97 is authority, as are other cases, that where a term of less than three years for more than one offence has been imposed as an aggregate sentence and there has been time served at the time of the order then the term of the ICO is to commence at the date of the order and is lessened by the time served. A point raised but not necessary to decide in Mandranis was the position when the term imposed exceeds three years but is less than three years at the time of the imposition of the ICO when the time already served is taken into account. In a case of Alferink [2021] NSWDC 473 I accepted an argument put by the offender in that case that whether or not a sentence is backdated or whether time served is taken into account to determine the length of the sentence to be imposed as at the date of the order was a discretionary matter for the sentencing judge. That conclusion was supported by earlier authority such as R v Leete [2001] NSWCCA 337 and R v Deeble. Given my determination the question does not arise here, but in my view had the sentence arrived at been more than 3 years and less than 3 years 6 months and 8 days, I consider the prohibition of s68 would not operate.
Given the term of sentence I have arrived at it remains to consider the third step in determining whether an ICO is appropriate being the consideration of section 66 CSPA. In this regard I adopt the approach of by Campbell J in Blanch v R [2019] NSWCCA 304. By section 66(1) community safety is the paramount consideration. Section 66(2) requires consideration or assessment of whether an ICO or serving a full time custodial sentence is more likely to address the offender's risk of reoffending. The evidence before me on this point is of the marked positive steps taken by the offender towards rehabilitation whilst on bail and indeed commencing with his incarceration with his abstinence. This has occurred in the context of having family support and employment. It is self-evident that the current conditions of his residing in the community are permitting and indeed I would infer enabling and enhancing the steps that he has taken towards rehabilitation. The evidence on the other hand concerning custody is on one view also positive given his own positive evidence of his time in custody although that was very brief evidence. I do note however the submission which I accept that custody at present is more onerous due to the at least current prevalence of lockdowns. Furthermore there is no evidence before me as to whether the same type of counselling may be available to the offender though it may well be that there are some courses available, though just precisely what is not in evidence. On balance I consider that the offender is less likely to reoffend if his rehabilitation in the community was to continue.
Section 66(3) requires the other purposes of sentencing set out in section 3A to be taken into account. I have identified those purposes above. In my view in all the circumstances of this case including the fact that the offender has already endured more than six months incarceration those purposes are equally met, in fact more than equally met in the community that they are in custody. That is, the purposes of punishment, deterrence and denunciation are met in part by the term of custody already served, and will further be met by the imposition of an ICO. The purpose of promoting rehabilitation will be well met by an ICO, and the protection of the community is well served by the combination of these punishments of custody and the ICO.
The conclusion I therefore reach is that this is an appropriate case for the imposition of an intensive correction order. In reaching that conclusion I have carefully considered the argument for the Crown which was made in the constraints that are upon the Crown in terms of suggesting an appropriate sentence and within those constraints indicated the difficulty was the prohibition set out in section 68. There was in fact no submission arguing against an ICO if that prohibition had no application, though it may be inferred perhaps that the Crown view of the seriousness of the offending made an ICO inappropriate, which for the reasons given above, I do not accept.
As the offender has already served 6 months and 8 days in custody, and as the ICO is to commence at the date of this order, then taking that into account the term of imprisonment will be 2 years, 5 months and 22 days.

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (2)

Cases Cited (8)