Supreme Court of the ACT|2015-10-23|Before: Robinson AJ

The Queen v Torbert [2015] ACTSC 331 (23 October 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - Sentence - particular offences - recklessly inflict grievous bodily harm - plea of guilty - impact of mental illness on sentence

Crimes (Sentencing) Act 2005 (ACT), ss 7, 10(2), 33(1)(f), 33(1)(e), 33(1)(m), 33(1)(za), ss 35(2)(b), 35(5)

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Douglas v The Queen (1995) 56 FCR 465

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nona v The Queen [2015] ACTCA 34

R v Charnock, Unreported, Supreme Court of the ACT, Neild AJ, 4 September 2012

R v Davies, Unreported, Supreme Court of the ACT, Burns J, 17 July 2013

R v O'Brien, Unreported, Supreme Court of the ACT, Penfold J, 10 June 2008

R v RC, Unreported, Supreme Court of the ACT, Burns J, 19 October 2012

Legal Aid ACT (Offender)

1. Ivan Terrence Torbert, the offender, pleaded guilty on arraignment before Chief Justice Murrell on 18 June 2015 to a charge that on 26 September 2014 he recklessly inflicted grievous bodily harm on Maxwell Shipway. He stands for sentence on that count.

2. The offence is contrary to s 20 of the Crimes Act, 1900 (ACT) (the Crimes Act) and carries a maximum penalty of 13 years imprisonment.

3. The offender was arrested on 3 October 2014 and has remained in custody since that date.

4. The offender had originally been charged before the Magistrates Court with an offence under s 19 of the Crimes Act of intentionally inflicting grievous bodily harm. That offence carries a maximum penalty of 20 years. At some time, although it is not clear when, the prosecution withdrew the original charge and presented a new indictment of recklessly inflicting grievous bodily harm. The offender pleaded guilty on arraignment to the new charge after having signalled that plea to the Registrar on 18 June 2015.

5. Counsel for the offender observed that the offender's legal representatives were duty bound, in the circumstances, to rule out a defence of mental impairment, established under Part 2.3 of the Criminal Code 2002 (ACT), before a plea could be entered to any offence. They were only able to do this after receiving the opinion of Dr Allnutt, a forensic psychiatrist, in June 2015, who opined that the offender did not have available to him a defence of mental impairment.

6. I propose to allow a discount for this early plea to the new indictment of about 25% for its utilitarian value.

7. On 25 September 2014, Maxwell Shipway (the complainant) telephoned the offender, whom he had known for about six months. The purpose of the call was to request a lift from the complainant's residence to the Belconnen Cash Converters store to pawn a mountain bike to generate funds to pay the complainant's rent.

8. The offender arrived at the complainant's residence with another male known as "Toohey." The bike was loaded into the back of the offender's hatchback and the three drove to the Cash Converters store at Belconnen. The complainant was offered what he considered to be an inadequate amount for the bike and no transaction ensued. The bike was reloaded into the rear of the offender's car and the offender drove the complainant back to his residence.

9. About 90 minutes later on the same day, the offender telephoned the complainant twice in quick succession and accused him of stealing an item from the back of the offender's car, which item had been given to him by his mother. The offender was highly agitated and aggressive on the telephone.

10. The complainant was not aware of the object the offender was referring to and maintained he had not removed anything from the vehicle. About 15 minutes later, the offender again communicated with the complainant and said-

You lose thief, more than it's worth you speak in my face after all the respect I have given you where do you want to meet me in your house say in a few minutes be there or be scared

11. The complainant did not reply to this message.

12. The following day, 26 September, the complainant took his two dogs and rode his pushbike to Watson to work on a friend's vehicle in a carport. After he had finished his work on the car and was preparing to leave he noticed his bike had a flat tyre. He commenced repairing the punctured inner tube. He was, at this time, on a grassed area outside a block of units.

13. While the complainant was standing over his bike, the offender approached him from behind and swung a machete at the base of the complainant's right leg. The machete instantly severed the complainant's Achilles tendon.

14. The complainant felt a painful strike and stumbled backwards, immediately falling to the ground. A large amount of blood poured from the injury. The offender was by then standing over the complainant holding a machete in his right hand which was raised at head height. The offender was yelling "You're finished".

15. The complainant picked up the bicycle tyre that he had just removed and blocked a number of swings from the machete, preventing it from striking his head and chest, but receiving cuts to his fingers on the right-hand. These cuts were deep enough to cause ligament damage to two of his fingers.

16. The complainant threw the bicycle tyre at the offender and attempted to stand again but he was unable to use his right leg and stumbled backwards.

17. As the complainant began to stand, by bearing his weight on his left leg, the offender again swung the machete at him striking him on this occasion in the front of his left leg just above his left knee. The machete cut through the complainant's leg severing the tendon at the front of it, cutting into the bone and breaking off a section of that bone.

18. As the complainant began yelling for help, his two dogs started barking at the offender. A number of residents of the unit block began looking out of their windows. The dogs began biting at the offender's legs. As the neighbours began coming out of their apartments the offender decamped.

19. The complainant was conveyed to the Canberra Hospital by ACT Ambulance Services.

20. On 3 October 2014 police arrested the offender. At the time of his arrest, police observed him to have a vacant expression, to be unsteady on his feet and slurring his words. He appeared to be under the influence of some intoxicating substance. As a result, Police formed the opinion that the offender was unable to understand a caution and his rights at that time. He offender was remanded in custody. That same day the police executed a search warrant on the offender's premises and located a machete.

21. At the time of the offence the offender was aged 36. He was born in the USA and migrated to Australia with his mother at age two. He is now an Australian citizen. His parents separated when he was young and his father remains in the USA.

22. The offender's mother remarried and the offender told Dr Allnutt that he had been physically abused by one of his step-fathers on a daily basis for a period of 10 years. He told Dr Graeme George, who examined the offender for the Court, that this step-father was also an alcoholic. He enjoys a good relationship with his mother and siblings in Australia and visited his father in the USA in 2013. He has no children and told the author of the Pre Sentence Report that he had a domestic relationship prior to his remand which was "adequate".

23. He left school following completion of Year 8, at approximately 14 years of age, and has apparently held a number of unskilled jobs, including a period of employment with his brother who runs his own painting business in Queensland.

24. He first used cannabis at age 11, LSD at 13, amphetamines at 15, heroin at 18 and methamphetamines in about 2002. He was apparently introduced to alcohol at the age of four, and from the age of 13 to 25 years he was consuming an unknown amount of alcohol five days a week. He told both the author of the Pre-Sentence Report and Dr Allnutt that he used all of the illicit substances fairly regularly. Relevantly for present purposes, he told the author of the Pre-Sentence Report that in 2012 he ceased illicit substance use and participated in a residential rehabilitation program. Following six months in this program the offender relocated to Queensland and engaged the services of an alcohol and drug service for counselling. He reported that apart from a couple of lapses he was abstinent from drugs. Unfortunately, upon his return to Canberra in approximately February 2014 he resumed the use of illicit substances.

25. He had an early diagnosis of possible ADHD but was never medicated. He also has a diagnosis of Hepatitis C.

26. There are genetic predispositions to mental illness and his mother has been diagnosed with schizophrenia.

27. The offender has a substantial number of items on his criminal record. These are all relatively minor in nature and include drug possession charges, possession of dangerous weapons (including knives), destruction of property, assault and assault occasioning actual bodily harm, and various driving offences. The offences were committed in the ACT and New South Wales. The most recent offence, prior to this one, was committed in 2011 and the offender received a custodial sentence of three months duration. He also spent three months in custody for an offence committed in 2010. Other than those two periods of imprisonment, the offender has managed to avoid custodial sentences despite his long, but minor, criminal history.

28. As noted at paragraph [5], the offender's solicitors sought a psychiatric report from Dr Stephen Allnutt. The purpose of this opinion was to determine whether the offender had a defence of mental impairment available to him to meet this charge. The doctor's opinion was that he did not. However, the report is very comprehensive and throws much light on the offender's behaviour.

29. The offender has a diagnosis of paranoid schizophrenia. During his examination of the offender, Dr Allnutt undertook a comprehensive review of material relating to the offender's mental health. This documentation included reports from various mental health professionals and covered the period 1990 to 2015. I will not set out these primary sources of information. It is sufficient for present purposes that I go directly to the doctor's opinions as to diagnosis and as to the offender's mental state at the time of the offending.

30. Dr Allnutt noted that the earliest diagnosis of paranoid schizophrenia was 2005 and after reviewing the documentation, and consulting with the offender, he agreed with this diagnoses. I accept Dr Allnutt's opinion as to diagnosis and as to the offender's mental state at the time of the offending.

31. In Dr Allnutt's opinion the offender manifests a psychiatric condition consistent with the diagnosis of a paranoid schizophrenia. The doctor continues-

He continues to manifest residual symptoms of a resolving psychotic episode, characterised by residual referential ideas (the radio playing songs about him) and auditory hallucinations (hearing voices). These symptoms occur in the context of an absence of intoxication on methamphetamines or any other substances. While methamphetamines can induce a drug induced psychosis with a presentation similar to that of paranoid schizophrenia, his long history of psychotic symptoms, genetic vulnerability to a chronic psychotic disorder, recurrent admissions and persistence of symptoms in the absence of substances is more suggesting of a chronic psychotic disorder (in this case paranoid schizophrenia) aggravated by substances rather than a drug induced psychosis alone.

32. Dr Allnutt also addressed the offender's functioning at the time of the offence. Although the passage is lengthy I will set it out in full -

Given a positive family history of depression and psychosis, he was genetically vulnerable to developing a serious mental illness. He was brought up in an environment characterised by domestic violence and aggression. His scholastic trajectory was compromised by behaviour problems and attention deficit hyperactivity disorder, leaving school in year eight. Further compromising his development and aggravating his genetic vulnerability has been the early onset of substance use. He has since had limited capacity [for] employment and committed relationships. His psychosocial course has been complicated [by] multiple admissions to psychiatric hospitals. Earlier diagnostic formulations considered his behavioural problems as stemming from a combination of substance use, ADHD and antisocial personality. There have been however sustained reports of psychotic symptoms dating back to at least 2000. Over time the diagnostic formulations has evolved to a diagnosis of schizophrenia. I note that he has been diagnosed with antisocial personality disorder, however in an individual who is recurrently experiencing psychotic episodes in the context of substance abuse, it would be difficult to confirm such a diagnosis until he has been monitored in the absence of substance abuse and psychotic symptoms.

In the time leading up to the alleged offence he was utilising substance including heroin, methamphetamine lines and cannabis. He was using methamphetamine lines intravenously in the context of difficulties in his relationship with his girlfriend. The methamphetamine would have had the effect of aggravating his symptoms of schizophrenia at the time.

By the time of the alleged offence he reported experiencing auditory hallucinations and ideas of reference as well as persecutory beliefs.

He stated that the complainant was making threats to kill and have anal sex with him and that the complainant actually took his tools. These appear to be the two most significant beliefs that motivated the alleged offending reported by him.

There is factual evidence that the complainant threatened him in the manner he claims and made phone calls to him. Whether he stole his tools is unclear. I would on balance accept that the belief that the complainant was going to kill him and have anal sex with him was base[d] on a relatively rational interpretation of events.

Whether or not the complainant took his tools in fact, or the tools were simply mislaid, or he had a delusional belief that the complainant stole it is unclear to me. I think it unlikely that the belief that he had tools was delusional but cannot rule this out definitively.

Based on the information provided, there are reasonable grounds to conclude [he] was experiencing that is psychosis [sic], secondary to aggravation of his schizophrenic illness and thus psychotic symptoms with the use of substances.

I do not however believe that he would have available to him a defence of mental impairment.

It would nevertheless be reasonable to view the psychosis would have exaggerated the threat the complainant posed to him. That is, that even if the real threats were made, the psychosis compounded the belief from one, which he might have held with a degree of scepticism (if he had not been psychotic) to one he held with greater conviction. So that with contribution of his psychosis at effecting his judgement and disinhibiting him, he came to believe that a pre-emptive strike was necessary to protect himself from physical and sexual assault by the complainant.

33. As can be seen from the above, Dr Allnutt, in providing his opinion, considered both an actual threat and a delusional threat on his instructions. The agreed Statement of Facts rule out any actual threat by the complainant and I proceed on the basis that there was no actual threat to the offender. The only evidence of that purported threat is that of the offender and I reject it.

34. Dr Graham George examined the offender on 27 February 2015 and produced a detailed report. He agreed with the diagnosis of paranoid schizophrenia.

35. Under the heading "Summary and Opinion", Dr George said-

Mr Torbert is a 36 year old man who presents for psychiatric assessment in the context of his current charges, it does appear that he has been diagnosed with paranoid schizophrenia. He did indicated that he suffered auditory hallucinations, paranoid delusions, ideas of reference and incongruent fear at times. He also indicated that he had been a chronic abuser of psychoactive substances.

Of interest on the day of assessment was that he had no evidence of any ongoing psychotic phenomena, nor did he have any evidence of formal thought disorder, which is, often, an accompaniment of chronic schizophrenia

The current diagnosis of schizophrenia would be a retrospective diagnosis on my part, given the information present in the file material, especially the healthcare notes will stop at this point in time and given his response to psychotropic medication, one could conclude that he does suffer paranoid schizophrenia. At the same time, he presents with a history of polysubstance abuse and would, also, occasion a diagnosis of chronic substance abuse disorder.

Mr Torbert should remain under psychiatric care. He should take current medication whilst in custody and I believe that if he is released from custody, he should be on a depot antipsychotic medication and followed up consistently by Mental Health ACT. Generally his prognosis would be seen as being guarded.

36. In December 2014 the offender's mental health treatment team diagnosed him with antisocial personality disorder, tardive dyskinesia and schizophrenia, with a differential diagnosis of amphetamine-induced psychosis, heroin dependence and substance abuse disorder. It may be significant that this diagnosis was made whilst the offender was in custody, presumably whilst he was free of the effects of illicit substances and whilst engaged in treatment provided by Justice Health who have reported that since October 2014 his symptoms had improved and he was stable.

37. The objective seriousness of this offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. Factors such as the injuries suffered by the complainant, and the nature of the behaviour engaged in by the offender, including any degree of planning, should be considered. I have been guided in my thinking on this issue by a consideration of current sentencing practices, as required by s 33(za) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and other sentences for offences under s 20 of the Crimes Act.

38. Counsel for the offender referred me to authorities concerning breach of s 20 of the Act, a number of them involving the use of a knife or machete to inflict harm. (See for example R v O'Brien, Unreported, Supreme Court of the ACT, Penfold J, 10 June 2008; R v RC, Unreported, Supreme Court of the ACT, Burns J, 19 October 2012; R v Davies, Unreported, Supreme Court of the ACT, Burns J, 17 July 2013; R v Charnock, Unreported, Supreme Court of the ACT, Neild AJ, 4 September 2012). These were of some assistance and have been taken into account in the manner described in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520. However, I keep in mind the limitations on their use such as are reflected in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [40]- [41].

39. Some of those offences were much less objectively serious than the present offence; other were objectively more serious. Purely on the basis of the injuries sustained by the complainant, and the effect this has had on him, I would regard this offence as in the upper end of the medium range of objective seriousness.

40. As to whether the attack was planned, or simply opportunistic, the Crown made it clear, and counsel for the offender concurred, that the offender had happened upon the complainant while still harbouring his developed sense of grievance. There is a hiatus in the Statement of Facts as to how the offender, carrying a machete, came across the complainant on this day as he repaired the flat tyre at a friend's place. Similarly, the Statement of Facts does not explain why the offender was travelling with a machete on the day in question.

41. There is an explanation in the evidence. The offender reported to Dr Allnutt that on the day of the attack the offender spoke with a friend, Justin, who told the offender where the complainant was located. The offender drove to that location and when he came upon the complainant removed the machete from his car and instigated the attack. Apparently the offender had purchased the machete some six months earlier and it was kept it in the boot of his vehicle. If this is accurate, then it shows a level of planning and premeditation. In the light of the concession of the Crown above I do not propose to act upon this information.

42. In approaching the task of sentencing the offender I must have regard to such of those factors that are relevant set out at s 33 of the Sentencing Act.

43. One such factor is the offender's cultural background, character, antecedents, age and physical or mental condition: s 33(1)(m). As noted above the offender's childhood was disadvantaged and marred by violence, alcoholism and mental illness. He commenced his own use of alcohol at the age of four, progressing to the use of cannabis at age 11. It seems clear that he developed his substance abuse problems at this early age and as a result of his upbringing. This fact is relevant to the level of his moral culpability (Douglas v The Queen (1995) 56 FCR 465). In terms of the enduring effect of childhood deprivation, in Bugmy v The Queen (2013) 87 ALJR 1022 at 1031, [37]; 1032, [43]-[45] the High Court made it clear that the effects of such a childhood do not diminish over time and are to be given "full weight" in the determination of an appropriate sentence (see also Nona v The Queen [2015] ACTCA 34 at [63].)

44. Also relevant to his level of moral culpability is his mental state at the time of the offence. During the course of the interchanges on the sentencing hearing there was debate concerning the moral culpability of the offender. The most extreme position is that his mental health condition (paranoid schizophrenia) did not make any real contribution to the actual offence. What made a real contribution to the offence by triggering the psychotic episode, it was submitted, was a number of factors including the voluntary ingesting of illicit substances, the failure to adhere to his medication regime, and the inherent fluctuations of schizophrenic symptomology.

45. I find that the offender had and has a psychiatric condition consistent with a diagnosis of paranoid schizophrenia. At the time of the offence, the offender was experiencing a psychotic episode. The offender told Dr Allnutt that he was not taking his medication at the time of the offence, and that although he had been prescribed an anti-psychotic drug, Zyprexa, he took it irregularly. It is likely that the psychotic episode was brought on by the use of illicit substances by the offender.

46. The offender has suffered from the condition of schizophrenia from at least 2005, when he received his first diagnosis. There is no evidence that he has ever committed a violent crime worthy of imprisonment, prior to this current offence. It seems clear enough that up to this crime he was able to function more or less within the bounds and expectations of societal norms in terms of violence, although I note his antecedents.

47. The offender's mental health and the degree and manner to which his condition is to be taken into account, became the real issue on sentence. The High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [54] set out the general principles.

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. (Citations omitted)

48. In DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] the topic was dealt with in more detail. McClellan, Chief Judge at Common Law, wrote:

Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, for example, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] VicRp 26; [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [32]; Courtney v The Queen [2007] NSWCCA 195; (2007) 172 A Crim R 371 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

• Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]).

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50-51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]).

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]).

• It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at 400); R v Israil (at [25]); R v JW (at [192]).

• Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]).

• Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]-[24]).

49. Counsel for the offender referred me to the oft-cited passage from R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [32]. There is no need to set out that passage in these remarks. They largely mirror the ground in DPP v De La Rosa.

50. Generally, one can only take into account mental health of the offender in terms of determining his moral culpability if it is the case that he failed to appreciate the wrongfullness of his conduct because of his mental illness, and not because of his drug induced psychosis. However, such is the interrelationship of the offender's mental illness, his non-compliance with his treatment regime, his decision to ingest illicit substances, and the ingestion of those substances, that it is difficult to disentangle the causal connection of these factors to the offending behaviour. It is well recognised that impaired mental functioning at the time of an offence may reduce an offender's moral culpability if it had the effect of impairing his or her ability to exercise appropriate judgement. See, for example, Verdins at [26] and the passages from De La Rosa and Muldrock quoted above. It is also well accepted that voluntary ingestion of drugs or alcohol does not lessen moral culpability; innate conditions relating to a person's mental health do mitigate culpability.

51. I conclude that the offender's psychotic episode was an aggravation of his schizophrenia, which was likely precipitated by his consumption of methamphetamines. I accept that the offender's illness impaired his judgment and, labouring under that impairment, he both failed to be compliant with his medication and decided, unwisely, to ingest substances which had the effect of promoting a psychotic episode, which in turn exacerbated his response to the threat he perceived from the complainant. I find that his moral culpability for the offence is therefore lessened as a result of his mental illness.

52. This is consistent with the opinion of Dr Allnutt who concluded that the offender's long history of psychotic symptoms, genetic vulnerability, recurrent admissions to hospital and persistence of symptoms in the absence of substances was evidence of a chronic psychotic disorder aggravated by substance abuse, rather than a drug induced psychosis alone.

53. The offender's counsel made the point that when dealing with a person with a significant mental illness the ability to express or feel remorse, particularly when, as here, the offender seems fixated on a factual matrix that appears to be delusional, becomes less significant. I accept that proposition. It must be said that the offender has shown no remorse for the offence. In the circumstances, I will still allow a discount of 25% in the reduction of sentence on that basis. Whilst he was apparently able to articulate an understanding of the impact of his behaviour on the complainant, he continued to justify his behaviour and considered the complainant instigated the offence.

54. The effect of an offence on a victim is a factor in determining the objective seriousness of an offence and is a relevant factor to be considered in the determination of an appropriate sentence: s 33(1)(f) Sentencing Act. Injury caused to a victim is also a relevant consideration (s 33(1)(e) Sentencing Act.

55. The injuries sustained by the complainant are unassailably serious. The Statement of Facts notes that the machete severed the tendon at the front of the complainant's left leg, cutting into and breaking a section of the bone. There was also ligament damage to two fingers. The first blow of the machete severed the complainant's right Achilles tendon.

56. The complainant, Mr Shipway, has provided to the Court a Victim Impact Statement dated 9 September 2015. The statement speaks to both the psychological and physical effect on him of the attack. In his statement the complainant describes regular, distressing flashbacks, hyper-vigilance and anxiety and fear whenever he is in public. He now finds it difficult to leave his home, only doing so when necessary to attend to normal domestic activities such as paying bills, collecting his medication, and walking his dogs. The impact of the offence has also affected his ability to engage in intimate, romantic relationships.

57. In addition to the psychological impact of the offence, Mr Shipway further describes the physical pain in his right foot, ankle and calf which he now endures when undertaking normal life activities such as bending over, kneeling, and using stairs. He has constant pain and limited movement in his right ankle where the tendons were severed which makes it difficult to ride his bicycle, his only means of transport as well as a pursuit he previously enjoyed. Because of his fear of the public he cannot travel on public transport and so is compelled to cycle, despite the terrible pain he suffers when doing so.

58. In deciding an appropriate sentence to impose upon the offender I must recognise the purposes of sentencing in s 7 of the Sentencing Act. In this case those relevant purposes include the imposition of adequate punishment, general and specific deterrence and rehabilitation.

59. As to rehabilitation, the offender reported to the author of the Court Alcohol and Drug Assessment Service that he had accepted methadone treatment for the first time when he entered custody on this offence. At the date of the report, August 2015, he had been successfully on that methadone program for 10 months. As a contrast to that enthusiasm for rehabilitation, he told the same author that he was not interested in engaging with any AOD treatment services, stating that he was 'sick of it'. That stance indicates either a lack of insight into the causes of his offending behaviour, which I have attributed somewhat to his drug use, or simply a lack of interest in rehabilitation.

60. He told the author of the Pre-Sentence Report that he had participated in a residential rehabilitation program in 2012 and that he was abstinent from drugs until he returned to Canberra from Queensland in February 2014. That indicates at least an ability to abstain, given the right conditions and motivation. I give some weight to his prospects of rehabilitation because of this and the other factors mentioned previously.

61. He was assessed as a medium to high risk offender, which risk might be reduced if he engaged in AOD treatment and maintained his mental health medication regime. Given he averred, as recently as August 2015, that he would not engage in AOD treatment I cannot conclude that his risk of recidivism is anything other than that stated.

62. Having regard to the diagnosis and the reports from Dr George, Dr Allnutt and the Pre-Sentence Report, the offender will always be at risk of committing a significant anti-social act if he does not take his anti-psychotic medication and does take illicit drugs.

63. As to the rehabilitation of the offender, I have found that the prospects of rehabilitation are, at best, average. They rest squarely with the offender and his commitment to abstinence from drugs and his adherence to his medication. I do not intend to impose a shorter minimum term than is otherwise required by the offending. The offender's prospects of rehabilitation might even be promoted by a reasonable period of incarceration where he can access treatment and have the benefit of close supervision. In the circumstances of this case, there is no detriment to the prospects of rehabilitation with the imposition of the minimum period that I consider should be served before the offender is eligible for parole for this specific offending.

64. As to specific deterrence, this will be relevant only if the offender was conscious of the wrongfulness of his conduct, despite his mental illness. Given the offender's mental health, and the fact that I have found he was labouring under a psychotic episode at the time of the offence, specific deterrence is of limited relevance.

65. As noted above, I intend to give a 25% discount for the guilty plea entered by the offender: ss 35(2)(b) and 35(5) of the Sentencing Act. Despite having been charged initially on 3 October 2014 and pleading not guilty to that original charge, I consider his guilty plea to the new indictment on 18 June 2015 occurred as early as possible.

66. There is no penalty that is appropriate other than full-time imprisonment: s 10(2) Sentencing Act.

67. I convict the offender and sentence him to imprisonment for 7 years. I reduce this period to 5 years 3 months on account of the offender's plea. The sentence is to commence on 3 October 2014, and expire on 2 January 2020.

68. I set a non-parole period of 3 years before the offender is eligible for release. The earliest date on which the offender can be released is 2 October 2017.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson.

(Sentencing) Act 2005

The Queen v Torbert [2015] ACTSC 331

At a glance

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Judgment (93 paragraphs)

The Queen v Torbert [2015] ACTSC 331 (23 October 2015)

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Cases Cited (9)