Solicitors:
C Hyland, Solicitor for Public Prosecutions (Crown)
Aboriginal Legal Service (NSW/ACT) Limited
File Number(s): 2015/000253600
[2]
sentence
John Charles Hordern the offender appears for sentence after he pleaded guilty in the Local Court to one count of wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. The offence also carries a standard non-parole period of seven years.
The parties presented an agreed statement of facts that can be summarised as follows:
The offender had known the victim Kenneth Sharwood for about four months, they were both residents of Gilgandra. The offender and the victim were in dispute over the sum of $50 loaned by the victim to the offender.
On 27 August 2015 a series of text messages were exchanged between the two men. On 28 August 2015 the text messages continued but they became aggressive and threatening. At 6.53am the offender sent a text message in which he threatened to kill the victim. At 8.25am the offender sent a text message that read, "Come out the back lane and we will see who is gutless now you piece of shit." Shortly afterwards the victim responded with a text message that read, "If u think you're a mad cunt cum around home when I drop my kids off & we'll sort it out shit talker."
At about 9.30am the victim was inside his home when he heard the offender yell, "Are you gunna come out?" The victim walked outside and saw the offender standing in his front yard. The offender pulled out a shortened sword or a machete about two feet long with a wooden handle from the front of his pants. The offender came at the victim with the weapon and swung it hard at the victim's upper body. The victim tried to back away and put his left arm up to block the strike. The victim sustained a deep wound to the elbow from the blow which went through his long-sleeved jacket. The offender struck at the victim again causing a second wound to the victim's left upper arm.
One of the victim's neighbours yelled at the offender to stop. The neighbour saw blood coming from the victim's left elbow. The offender said to the victim "you're fucked" and left the scene.
The victim was treated for his injuries at the Gilgandra Multi-Purpose Health Service. The treating doctor identified two wounds to the victim's left arm. The more serious of the wounds was an 11 centimetre laceration just below the elbow which penetrated all the way to the bone through the skin, muscle and fat layers. X-ray investigation confirmed an undisplaced fracture of the tip of the left elbow. The other wound located above the elbow was ten centimetres in length and had penetrated the skin through the underlying fat tissue. The treating doctor opined that this wound was superficial in comparison.
The police were informed of the victim's injury by a nurse at the medical facility at about 2.40pm. Later that day police attended the offender's premises and searched them. The police did not locate the offender or the weapon.
At about 7.30pm on 29 August 2015 police located the offender hiding under the house at his premises, when he was asked what happened to the weapon he told police "I threw it over the fence in the paddock", indicating a paddock to the west of his premises. The weapon was not located by police who conducted a number of further searches.
The offender was taken to Gilgandra police station, he confirmed that he used a particular mobile phone number but otherwise declined to be interviewed.
The victim's arm has now healed and he has full movement of it. He experiences pins and needles in his left hand as a result of the injury sustained.
[3]
Victim Impact Statement
I have considered the victim impact statement. The victim is now constantly concerned for his safety and avoids leaving the house. He requires medication to help him sleep. The victim describes being terrified during the attack and considers himself lucky to be alive.
[4]
The Offender's evidence on Sentence
The offender gave evidence before me on 15 July 2016 and was cross-examined.
The offender is an Aboriginal man of 46 years of age and is currently an inmate of Parklea Correctional Centre.
Whilst in custody he has been prescribed the medication Avanza an antidepressant for bipolar disorder and distress. He is taking methadone as a replacement for opioid pain killers. He had been taking the pain killers for cancer to the parotid gland which is located in his throat. He is suffering from pain in his legs caused by reduced circulation, a condition known as vasculitis.
In the days leading up to the incident he had been using methylamphetamine. His experience of the drug was that he could be awake for long periods of time. He believed that he had in the past been awake for as long as 20 days as a result of using the drug. He gave evidence that he did not recall much of the circumstances of the offence. He had read the agreed facts before signing them and he accepts them to be an accurate record of what occurred. He acknowledged that the offence was very serious.
The offender gave evidence that he was ashamed of himself for his conduct and that he did not believe that he would commit that type of offence without being under the influence of drugs. He described his response to the dispute between the two men as being disgusting and "out of proportion".
He did not believe that he would reoffend if he could stay away from drugs. He gave evidence that he had been off them for a while but relapsed when his mother died in about June 2015. He had not taken any drugs since he had been incarcerated although he had the opportunity to do so and he had taken drugs in custody on prior occasions.
The offender accepted that he has an extensive criminal record that began when he was about ten years of age. In the period between 1980 and 2000 there was only about a four year period where he did not commit any offences. He gave evidence that dishonesty offences and offences of violence that he committed in that period were all drug related.
In about 2001 he moved to Queensland. He remained out of trouble with the law for some period after being imprisoned for one offence.
He had commenced rehabilitation on a number of occasions but had never completed a course or a program. He described himself as not committed to rehabilitation resulting in him returning to drugs.
His current attitude is that he is over the lifestyle and wants to try life as a normal person. He gave evidence that he had not had that intention in the past.
He told the psychiatrist that he had a happy childhood. He gave evidence that in reality he was exposed to violence and alcohol abuse and was introduced to drugs at a young age.
He has previously been treated with Avanza for depression over a few years and has been a voluntary patient at a psychiatric hospital in 2015. He was diagnosed with cancer of the parotid gland during that admission. He described the cancer as like having golf balls in his throat. He has been advised that it is unlikely to be terminal. The cancer is making life in gaol difficult because he finds it hard to eat solid foods and difficult to breath while sleeping. I noted that when he left the witness box he had a marked limp that he said was caused by the vasculitis.
He gave evidence that he has not been the subject of any prisoner charges whilst in custody in relation to this matter. He intends to pursue residential rehabilitation when he is released on parole and is willing and eager to do anything to get his life in order and secure employment. His sister lives in the Weipa area and he intends to reside in that area as they have a good relationship.
[5]
Report of Dr Kerri Eagle
The offender relied on a report of Dr Kerri Eagle forensic psychiatrist dated 7 July 2016 that can be summarised as follows:
Dr Eagle saw the offender in custody on 29 June 2016.
The offender gave a history that he had been separated from his partner for three years. He has five children who are all adults but he is not in contact with them. Prior to his arrest he was on a disability support pension that he received for drug problems.
The offender reported his mood as terrible and that it had been up and down. He suffered from agoraphobia and had spent a lot of time in his cell because crowds make him feel queasy and paranoid. He often heard voices in his head when confronted by crowds.
The offender reported that he had difficulty sleeping. The offender was taking methadone and Avanza.
The offender gave a history that he had been admitted to Bloomfield Hospital on one occasion for about four weeks when he 'lost the plot' in the context of methylamphetamine use. He has a history of self-harm on several occasions including on the last occasion after he had been released from custody in early 2015. The records from the Bloomfield admission supported the diagnosis of cancer of the parotid gland.
The offender was first exposed to heroin at nine years of age when his cousin gave him a shot intravenously. He sold his possessions to support his drug habit and lived on the streets in Kings Cross until he was 16 or 17 years of age. His family turned against him and he ended up in trouble and in custody. He continued to use heroin until about 2007 when he stopped. He was then clean for about three years. The offender also gave a history of using cannabis and consuming alcohol from about ten years of age.
The offender told the psychiatrist that about five years ago he started to use methylamphetamine intravenously on a regular basis. He had also used morphine intravenously. He found that the use of methadone had reduced his use of other drugs.
The offender told the psychiatrist that he was using methylamphetamine daily for about two to three weeks leading up to the offence. He had not slept for ten days. He went around to confront the victim but could not remember much of what happened.
The offender skipped a lot of primary school, did not attend secondary school. He had never maintained employment.
The psychiatrist opined that the offender did not have any major mental illness at the time of the interview. The offender may have experienced drug induced psychosis in the past.
The offender described symptoms of social anxiety disorder with agoraphobia. He reported avoiding social situations due to fear of anxiety or concern about the negative evaluation or scrutiny of others. His anxiety was out of proportion to the threat posed. He has report persistent symptoms of anxiety for a number of years which have probably been exacerbated by substance abuse. The psychiatrist also diagnosed the offender with severe substance abuse disorder, relating to his use of methylamphetamine, opiates, cannabis and alcohol. The psychiatrist also diagnosed the offender as suffering from an antisocial personality disorder based, on his history of offending behaviour dating from ten years of age including a failure to conform to social norms, impulsivity, irritability, aggressiveness and irresponsibility.
The psychiatrist recommended that he participate in residential drug and alcohol rehabilitation for at least 12 months on his release from custody and that he should participate in drug and alcohol intervention available to him in custody. She recommended that he receive vocational training assistance in obtaining stable accommodation and support from a psychologist to address he psychological vulnerability that have led to his substance abuse and anxiety disorder.
[6]
Objective Seriousness
The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No2) (1988) 163 CLR 465 at 472, 485-6, 490-1 and 496. At common law the term 'objective circumstances' was used to describe the circumstances of the crime. Gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566.
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime but also such are the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No5) [2009] NSWSC 432 at [61].
The nature and extent of the injury caused to the victim will to a very significant degree determine the objective seriousness of the offence and an appropriate sentence: R v Mitchell (2007) 177 A Crim R 97 at [27]. The wounds, whilst serious, have healed well and the victim has been left with a minor disability of decreased sensation in his left hand. The victim impact statement establishes that the attack has caused some psychological harm that is likely to be long-lasting. The victim requires medication to assist him to sleep.
The degree of violence used in the attack was significant. The attack involved the use a very large bladed weapon capable of inflicting serious injury or death. The attack was of relatively short duration and the offender ceased when the victim's neighbour intervened.
There was some limited planning and premedication in the offence established by the offender taking the weapon with him to the victim's house when he intended to confront him. The offender accepts by his plea of guilty that he intended to cause the victim grievous bodily harm.
The offence was unprovoked and unjustified: R v Matzick [2007] NSWCCA 92 at [23]. This was accepted by the offender in his evidence.
The victim was defenceless: R v Esho [2001] NSWCCA 415. The offence involved the offender bringing a weapon to the victim's home and calling him outside. In the circumstances I am satisfied the offender believed the victim would have been unarmed.
The maximum penalty of 25 years imprisonment indicates the seriousness with which an offence under s 33 is regarded: R v Zhang [2004] NSWCCA 358 at [28].
The offence is in the mid-range of objective seriousness.
[7]
Deterrence
Offences of personal violence are viewed very seriously by the courts. Deterrence is an important consideration particularly in cases of unprovoked attacks involving a weapon. Any assault involving the use of a knife must be regarded as calling for a significant sentence for the purposes of both general and specific deterrence to be given any effect: R v Watt (Unreported, 2 April 1997, NSWCCA). The community has a rightful expectation that the courts will impose penalty for these offences to demonstrate the offences are serious and will attract serious punishment.
General deterrence may be attributed less weight in cases where the offender suffers from a mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge. The effect of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.
The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community requires protection from the offender by reason of the mental condition suffered.
The offender's substance abuse disorder in particular his abuse of methylamphetamine was the most direct cause of his offending behaviour. Addiction is not normally an excuse for committing offences, but it is considered to be a choice: R v Henry (1999) 46 NSWLR 346. In this case the offender became addicted to drugs at age ten. He did not have the capacity to make an informed choice: R v todorovic [2008] NSWCCA 49. I consider that his addiction was the result of social and economic disadvantage when he was living on the streets. The offender is now 46 years of age and has not managed to complete a course of rehabilitation. The offender has had some periods without offending in the period 2001 to 2015 that represents some periods of abstinence from using drugs.
There is no evidence to suggest that the offender did not know what he was doing, or did not realise the gravity of his actions. The fact that he was intoxicated and that he does not remember much of the circumstances of the offence does not establish that he did not understand his actions at the time.
The offender's substance abuse disorder and his antisocial personality disorder make the offender a danger to society when he is at large. That danger is likely to continue unless he can achieve rehabilitation from substance abuse. This cannot lead to the imposition of a heavier sentence than would be appropriate if the offender was not suffering from a mental condition but is a material factor in determining the appropriate sentence.
His substance abuse disorder and the context in which it arose reduces his moral culpability for the offence to some degree.
There is a need for specific deterrence in this case: R v Engert (1995) 84 A Crim R 67 at 68. The offender has a long history of offences of violence and he needs to address his offending behaviour.
[8]
Aggravating Factors
The offence involved the actual use of a weapon: section 21A(2)(c) Crimes (Sentencing Procedure) Act 1999. The Court of Criminal Appeal has frequently observed that the use of a knife is a feature that specially aggravates the seriousness of an offence: R v Dickison [2004] NSWCCA 457 at [23]. The presence of a knife in an emotionally charged situation increases the danger and the penalty which is liable to be imposed: R v Hampton [1999] NSWCCA 341 at [10].
The offender has a record of previous convictions including serious personal violence offences: section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. Excluding matters dealt with in the Children's Court, the offender has convictions for dishonesty offences, personal violence offences, including break, enter and steal, armed robbery, assault and rob and assault occasioning actual bodily harm. The offender has been sentenced to numerous periods of imprisonment for these offences. The offender has on my rough count, 37 offences involving violence (or including the threat of violence) between 1988 and 2001 in New South Wales and 12 similar offences between 2001 and 2015 in Queensland.
Prior convictions are pertinent in deciding where within the boundaries set by the objective circumstances the sentence should lie: R v McNaughton at [26]. It cannot be said in the present case that the offences before the court were isolated. Rather it appears the offender has a continuing attitude of disobedience to the law which I accept has been the result of his drug addiction. Prior convictions should not be taken into account in such a way to punish the offender again for those earlier matters but in this case they do not assist the offender in affording him any particular leniency. From what I can ascertain on his record this appears to be one of the most serious personal violence offences.
The offence was committed in the home of the victim: section 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. This factor is directed towards the sanctity of the home and can be applied where the offender was an unauthorised intruder. The attack took place in the front yard of the victim's home. In this case the offender entered the front yard of the victim's home with the intent of causing him grievous bodily harm. He was not entitled to enter the premises by the usual licence inferred by law to a visitor because of that intention. I am satisfied beyond reasonable doubt that this aggravating factor is established.
[9]
Mitigating Factors
The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The evidence of the offender contains good insight into his substance abuse. I accept his evidence that he intends to modify his behaviour and seek to lead a normal life on his release from custody. I accept that he is now finding incarceration difficult as a result of his cancer and vasculitis. He has accepted treatment by way of medication whilst in custody. He has not demonstrated a commitment to address his substance abuse by attending courses in custody. He does not appear to have been given the opportunity to participate in psychological counselling. It is possible that he will be given further opportunities for rehabilitation in custody once he is sentenced for this offence. My conclusion on this issue is guarded as a result of his history and his rehabilitation is dependent on him engaging in opportunities available to him. I am satisfied however on the balance of probabilities that this mitigating factor is established.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 . The offender has expressed remorse to the psychiatrist and to the court. He has accepted responsibility for his actions and I am satisfied that on the balance of probabilities that he has expressed genuine contrition and remorse.
The offender entered a plea of guilty in the Local Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount in penalty that reflects the utilitarian value of the plea. The extent of the discount should be generally assessed in the range of ten to 25% but that is only a guide. The primary consideration in determining where in the range a particular case should fall is the timing of the plea so that the earlier the plea the greater the discount: R v Thompson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount for the plea of guilty is 25%.
[10]
Other Matters
The offender became addicted to drugs at a very early age and it should be considered a mitigating factor, because such addiction could not be classified as a personal choice: R v Todorovic [2008] NSWCCA 49. Whilst it is usual for the rehabilitative aspects of sentencing to assume a more significant role in those circumstances, I consider the offender's prospects of rehabilitation to be guarded for the reasons I have given.
I am satisfied that the offender had a dysfunctional upbringing and home-life in which he was exposed to the abuse of alcohol and drugs as well as physical violence. He lived on the streets for most of his formative years and has been deprived of education and employment opportunities. In this case the offender's deprived background is a matter that should be considered as a matter that mitigates the sentence imposed: R v Fernando (1992) 76 A Crim R 58 and Bugmy v R (2013) 249 CLR 571.
The offender did not specifically identify as Aboriginal and has not suffered racism or socialisation that are often experienced by Aboriginal people.
[11]
Sentencing statistics in comparable cases
The offender relied on sentencing statistics handed up, a table of cases summarised on the Public Defender's website and the decision of Porter v R (2015) NSWCCA 59. I have taken into account limitations of the use of such materials: Hili v The Queen (2010) 253 CLR 58 at [18]. The offender contended that the appropriate sentence based on those materials was a term of imprisonment of five years with a non-parole period of three years.
I have had regard to the summary of cases compiled by Justice Fagan in Newman v R (2015) NSWCCA 270 at [27] to [46]. In my view this case is both relevantly compared to the decision of Porter, which is also discussed in Newman. However there are a number of features that make the present offence more serious, being that there were two strikes with a machete compared to one in Porter, the machete was taken to be used on the victim whereas the machete was only produced by Porter after an initial altercation, and the extent of the offender's record for serious personal violence offences, whereas Porter had no relevant criminal record.
[12]
No alternative to imprisonment
I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no other penalty than imprisonment is appropriate.
The appropriate term of imprisonment is one of eight years which will be discounted by 25% to reflect the plea of guilty.
I find that there are special circumstances by reason of the offender's physical and mental condition and the need for residential rehabilitation to deal with his substance abuse. The offender will benefit from an extended time on parole to assist with his reintegration into the community, in particular vocational training and assistance with the provision of stable housing.
[13]
Sentence
The offender is convicted.
The offender is sentenced to a term of imprisonment of six years with a non-parole period of four years to date from 29 August 2015. The offender is eligible to be released on parole on 28 August 2019.
[14]
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Decision last updated: 27 September 2016