District Court New South Wales Medium Neutral Citation: R v Allen [2020] NSWDC 494 Hearing dates: 29 May 2020; 1 June 2020 Date of orders: 1 June 2020 Decision date: 01 June 2020 Jurisdiction: Criminal Before: ML Williams SC DCJ Decision: A term of imprisonment of 7 years, 3 months with a non-parole period of 4 years, 3 months: at [68]. Catchwords: SENTENCING — Aggravating factors — Grave risk of death to another person or persons — Presence of child — Use of weapon SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Relevant factors on sentence — Deterrence — Establishing relevant matters — Factual basis for sentence — General principles — Moral culpability— General principles — Maximum penalty — Objective seriousness — Parole period — Purposes of sentencing SENTENCING — Sentencing procedure — Agreed facts — Findings of fact SENTENCING — Subjective considerations on sentence — Mental illness — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health Act 2007 Cases Cited: Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Khanwaiz v R [2012] NSWCCA 168 R v Borkowski [2009] NSWCCA 102 R v Thomas [2007] NSWCCA 269 Tuncbilek v R [2020] NSWCCA 30 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Jeremy Allen (Offender) Representation: Mr J Bowers (Crown Prosecutor) Ms LC Hutchinson (Counsel for the Offender) File Number(s): 2018/217063 Publication restriction: STATUTORY NON-PUBLICATION APPLIES Section 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es)) Judgment 1. Jeremey Allen, now aged 31, appears for sentence having pleaded guilty to one count of causing grievous bodily harm with the intent, contrary to s 33(1)(b) of the Crimes Act 1900. This offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of seven years. 2. He pleaded guilty in circumstances which, it is agreed, justify a 10% discount on any term of imprisonment for the utilitarian value of the plea. 3. It is conceded that a term of full-time custody is appropriate, and it is unnecessary for me to consider any alternatives in the sentencing process, which is carried out against the background of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the maximum penalty and the standard non‑parole period for this offence as yardsticks in the sentencing process. 4. The offender has been in custody since his arrest on 15 July 2018 and the term of imprisonment will commence from that date. 5. The agreed facts in the Crown sentence summary are quite brief, but they have been amplified significantly by oral evidence from the offender and a co‑offender, Cassandra Ross. They involve an incident near the Woolworths store in Balmain at about 6.30pm on 12 July 2018, involving a 16 year old victim, being stabbed by the offender. The victim was with his younger brother aged 14, and a friend aged 16 years. They were walking from the victim's home, to the Balmain Woolworths. 6. The agreed facts continue to recite that the offender had walked from his home towards Woolworths, in order to meet his domestic partner, Cassandra Ross. He met Ross on Watson Lane and had a conversation with her. The victim and his two companions came out of Woolworths and started walking away from Watson Lane towards Palmer Street. The trio were approached by the offender from about 15 metres away. He approached the victim, put one arm around him and swung his other arm, holding an extended folding knife in an underarm motion towards the victim. The victim extended his hand to protect himself, the blade of the knife penetrated through the victim's hand and punctured his abdomen. He fell to the ground bleeding profusely and shouted out, "He stabbed me." 7. The Crown case was that the offender intended to stab the victim in the torso somewhere, and there was no lawful excuse for the offender's assault on the victim. The only interaction between the offender and the victim occurred in those few moments on 12 July. Prior to that, they did not know each other and had never met. The victim's brother immediately called triple-0 to summon an ambulance and police. The offender walked away from the victim's group and towards Cassandra Ross, who was standing near the entrance to Watson Lane. They started walking away to the south of Palmer Street and eventually broke into a jog heading to Stewart Street. 8. The wound to the victim was a full‑thickness stab wound, passing through both sides of the hand. The knife passed through the first knuckle of the ring finger, splitting the joint into two halves through the entire bone of the head and neck of the fourth metacarpal. The knife completely severed the nerves to the ring finger and middle finger on the left hand, requiring tendon and nerve repair to be conducted. The stab to his abdomen cut the superior epigastric artery and caused a 3.6 centimetre laceration to his liver. This led to substantial blood loss at the scene and a significant internal bleeding requiring immediate surgery. Medical treatment resolved the wound to the abdomen after several surgeries and he was discharged home from the hospital on 17 July. 9. Allen's criminal record commences with offences of stealing and common assault in October 2008, dealt with in the Local Court by s 9 bonds, subject to 12 months of psychiatric and psychological counselling. In January 2019, there were charges of assault and destroy or damage property, leading to a further s 9 bond. In February 2009, charges of assault occasioning bodily harm were dealt with by s 9 bond for a period of two years. On the same day, a charge of contravene AVO was also dealt with by a bond, subject to 36 months of psychiatric and psychological counselling. In January 2010, there were charges of common assault and contravene AVO, and a more serious charge of take and detain a person with the intent to obtain advantage, occasioning actual bodily harm. He was sentenced to three years and seven months imprisonment with a non-parole period of one year and ten months by Wells DCJ in November 2011. Apart from offensive behaviour, a matter for which he was fined in 2017, and two driving offences, his record was clear after his release to parole following the sentence imposed in 2011. 10. There is a very significant quantity of written material in the Crown case as well as the material tendered on behalf of the offender. I am able to deal with that material in light of the lengthy written and oral submissions that have been made. 11. A victim's impact statement was read to the Court by the father of the victim. It is taken into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269. It is a graphic description of the impact of the attack on the victim, notwithstanding that it is not challenged or subject to testing in cross-examination, it clearly indicates the physical and emotional scars that he will carry, as he said, for the rest of his life following what he describes as "a hideous, unprovoked attack". 12. The injuries and disabilities summarised in the agreed facts are amplified in the report of Associate Professor Meares, the plastic and general reconstructive surgeon, who describes a guarded prognosis and a possibility that the victim could develop osteoarthritis in the metacarpophalangeal joints of his left ring finger. He has ongoing numbness on the contiguous sides of his left ring and little fingers, he has a decreased range of motion of his left little finger, scarring on the right abdomen and the palm of his hand and the dorsum of his right hand and ongoing pain of the shooting variety that occur in the knuckle of his ring finger. 13. A certificate of Dr Joseph from Royal Prince Alfred Hospital notes that while the victim can return to unrestricted normal duties, and does not require any further imaging in terms of long‑term potential issues there is a very small possibility of there being an ischaemic portion of the liver causing ischaemic biliopathy, which could cause long term bile duct structures. However, the area affected would be incredibly small and not likely to cause any clinical issues. 14. The Crown material contains statements by the victim and his brother and his friend, all of which support the assertion in the agreed facts that there was no prior contact between the victim and the offender. They all describe, in relevantly similar terms, the offender walking straight up to the victim, grabbing him and stabbing him. 15. When the offender was arrested on 14 July, 2018 he participated in a recorded interview which contains a version he subsequently disavowed in evidence. He started by telling Police that he had been contacted by Cassandra Ross shortly before this incident and she told him that she was scared because some guys has threatened to stab her and she was hiding in the alleyway. He said he immediately ran out of the house in panic and ran all the way up the street as fast as he could to try and find Cassie because he was terrified for her safety and that he found her in the alleyway. 16. He said in evidence that that was true, but he acknowledged that he had been lying to the police when he said that the bigger of the three approached him and that the victim pulled a knife from behind him, and that he grabbed it with both hands and tried to overpower him take the knife. He said that he did not go up the street with any violent intentions and he went up there to find his girlfriend and make sure that she was safe. He suggested that his partner, Cassandra Ross, had contacted him by telephone to inform him of what had happened to her. 17. The offender relies on provocation as a mitigating factor on sentence. The Crown first became aware that provocation would be raised when served with the report of Anita Duffy, a psychologist, dated 15 November 2019. He told Ms Duffy that after his girlfriend told him that she had been threatened by three young males he raced off to join her and he took a knife to protect her as he had broken his hand and he could not fight and at the time he was scared, angry and lost control. He gave a similar version to Dr Furst, a psychiatrist, when interviewed in April this year. 18. The offender gave evidence when this hearing commenced last Friday. He said that Cassie had sent him a Facebook message which contained her updated location which was an unusual thing to do. He said, "And then she communicated with me and told me that three males had threatened to stab her and when she told that to me I left the apartment immediately and went to find her." 1. The issue for determination on this point, as outlined by Ms Hutchinson, counsel for the offender, is whether the Court can accept on the balance of probabilities that the offender was provoked by reason of receiving the message that he described from Cassandra Ross. It does not seem to be suggested that in any way the offender's behaviour was in fact motivated by threats or statements from the victim or anyone in his group. Ms Hutchinson's alternative submission is that if provocation is not established then the evidence at least gives some colour to his actions on the evening which even he acknowledges was a drastic overreaction due to diagnosed mental illnesses. 2. The Crown asserts that the Court should not be satisfied on balance that provocation can be established. It is common ground that the authorities show that any matter to be found against the offender must be established beyond reasonable doubt, any matter put on his behalf need be established on the balance of probabilities. The authorities also indicate there are some instances where a court simply cannot be satisfied to the appropriate standard and makes no finding as to a particular fact. As Beech‑Jones J said in Khanwaiz v R [2012] NSWCCA 168 at [96], in a case where agreed acts are tendered, and oral evidence is given that contradicts the agreed facts, it is open to the sentencing judge to act solely on the basis of the agreed facts. 3. The points that the Crown makes against the proposition put by Ms Hutchinson commence with the proposition that agreed facts were, no doubt, prepared carefully following negotiations between legal representatives leading up to the plea of guilty. They did not mention any communication between Ms Ross and the offender, either in a phone call or by message. As I have recounted, the facts in relation to the offender record that he walked from his home, and not that he raced off or ran to find her. 4. The agreed facts for Ms Ross have been tendered, she having been sentenced by a Magistrate to a Community Corrections Order, having pleaded guilty to concealing a serious indictable offence. Those agreed facts assert that at the time the victim's group left Woolworths the offender was leaning against a no entry sign, his girlfriend was 10 to 12 metres away and as the victim's group walked towards Palmer Street, Allen straightened up, walked in their direction and asked them whether they had a light. Then, as Allen reached the victim he produced a flick‑knife and thrust it into the victim's abdomen twice. Allen then put the knife in his pocket and ran towards Palmer Street where Cassandra Ross joined him and walked away from the location. 5. The agreed facts continue that Ms Ross was informed by Allen immediately after the incident with the knife that he had stabbed the victim. The agreed facts for Ross show that at 5.57pm that day Allen called her mobile phone. At 5.59pm she was at the Balmain Ferry Wharf. At 6.02pm Allen called her phone again; the call lasted two minutes and 52 seconds. 6. At 6.12pm he called her phone again. There is a call of more than a minute. At 6.13pm, Allen left Balmain Fitness which is a 1.4 kilometre walk away from Watson Lane near Woolworths. At 6.20pm Ms Ross walked south past Bourke Street Bakery on Booth Street. There was a call from Allen's father to Ross at 6.30pm in which nothing unusual was mentioned. 7. At 6.33pm Ross attempted to call Allen's mobile phone twice but those calls were not picked up. At 6.34pm Ross called Allen's mobile phone and there was a call for 20 seconds. The stabbing occurred very shortly thereafter, and at 6.38pm, about four minutes after the stabbing, Allen and Ross were captured walking past CCTV camera at Stewart Street. 8. I return to the matters put by the Crown on the provocation issue. Mr Allen admitted in his evidence that he had made up a version given during the record of interview so as to make it look as if he had a reason to inflict violence on the victim. He said that nobody threatened him. No one had a knife. 9. There is in the evidence a handwritten statement from the offender's employer who recalled that when he asked the offender why he had a knife at work, the offender said it was something for his protection. 10. A Cellbrite download of the phone owned by Cassandra Ross appears to show that the Wickr app was purchased on 13 July 2018. That is, after the offence. It is common ground that there is no mention of Wickr in the Cellbrite download prior to that purchase being recorded. Ms Hutchinson's submission is that in the absence of expert evidence and in light of evidence that Wickr messages self-destruct, it would be open to the Court to find that the app had been downloaded at some earlier time, but had been deleted and re-downloaded. I am simply unable to make any finding one way or the other in the light of the uncertainty about the evidence as to the mechanism of the Wickr messaging service. 11. There is no doubt that the offender was using alcohol regularly, particularly in the weeks leading up to this incident. He agreed that he was drinking excessively at the time. He used alcohol to supress his feelings of being stressed and wired up. 12. In summary, the Crown's submission on this point is that the offender's evidence is inconsistent with the agreed facts. He lied to the police in an attempt to raise a false claim of self-defence. That being a matter of significance when assessing his evidence that he stabbed the victim because he was provoked. 13. Ms Ross' evidence is inconsistent with the agreed facts signed by her. It is noted that she continues to be in a relationship with Mr Allen despite the fact that he has been in custody. The Crown ultimately submits that the evidence was inherently unbelievable and that he should be sentenced on the basis of the agreed facts without regard to the whole evidence of he or Ms Ross. 14. The findings that Ms Hutchinson submits I should make are founded on the proposition that I should accept that Mr Allen received a message from Ms Ross stating that she had been threatened by three young men. She submits that Ms Ross gave credible and cogent evidence of that and she gave that in an emotional and demonstrative manner. The evidence could not exclude that the message was sent on one of the many applications which they used to communicate with each other. A compelling matter is the proposition put by Ms Ross to the Crown Prosecutor in response to his suggestion that her account was false. It is a question to which no real answer emerges, namely she rhetorically asked the Crown if she had not asked Allen to come up to the Woolworths store why did he leave the house with a knife? 15. I am prepared to accept that there was some communication between Ross and Allen which led to him taking a knife as he walked to meet her. Whether the communication was by way of Wickr or other method it cannot be determined and the contents of the communication cannot be determined in the light of the conflict to which I have referred. Whatever motivated Allen to take a knife to the scene was, for reasons that I will come, it is not a matter that justifies a finding of provocation in his favour. 16. In particular, I cannot find that the victim, his brother or his friend had made any threats or statements to Ms Ross in light of their unchallenged versions on the Crown case. As the Crown says, it is implausible that the offender and Ross would have said nothing about Ross having been threatened in the phone calls to Russell Stone and their silence on those occasions was consistent with them having acted together to conceal the stabbing, committed deliberately by the offender without any lawful excuse. 17. The agreed fact that the offender walked up to meet Ross is also completely inconsistent with the offender rushing off to her protection. A further matter to be taken into account, as the Crown submits, is that the offender has shown himself to be an unreliable historian on a number of occasions and failed to mention his steroid use or a significant fight that he had with Ross the day before the offence. 18. His assertion to Dr Chu, Dr Furst and Ms Duffy that he had not had mood episodes or needed to take any psychotropic medication over a number of years that was contradicted by a post that he made in May 2018 where he talked about being depressed and not being able to control his bipolar and was self‑medicating with alcohol and Valium. There was also a record of a hospital admission in October 2017 where he was manic and requiring a psychotropic medication. 19. I turn to consider the objective seriousness of the offending, which the Crown submits is well above mid-range; and Ms Hutchinson submits is mid-range. I find it is slightly above midrange for the reasons that follow. As the Crown says, the offending involved a completely unprovoked act of violence upon a 16 year old boy who was stabbed in the abdomen with a folding knife nearby the exit of a major grocery store in peak hour in Balmain. It was brazen offending, given the likelihood that it could have been witnessed by a member of the community. 20. He placed his arm around the victim and combined it with an upward, underarm stabbing motion, indicating an intention to cause very significant harm. He held the victim preventing his escape and this increased the force of the blow. There was a very serious injury to the abdomen and the hand, as I have described, that was potentially life threatening given the number of major vascular pedicles delivering and draining a large volume of blood into the liver. The offender was well aware of the risk of a fatal injury being caused by stabbing a person in this area, given that he had previously posted about slashing a person in the abdomen and lacerating his guts and ultimately causing his death due to organ damage, which is a topic found at tab 15, page 1 of Exhibit B. 21. As the Crown points out, the nature of the injury is a significant matter, but not the most important matter. One also has to consider the manner in which the injury was inflicted, the reason for the infliction of the injury and the circumstances surrounding the offence, and here, having found in accordance with the unchallenged facts that there was no threat to the offender by the victim, this was a random and unprovoked attack. It was aggravated because it involved the use of a weapon, and it was committed in the presence of two other children aged 14 to 16 years. 22. It is true, as Ms Hutchinson points out, that in the scale of injuries and disabilities, although life threatening, the ongoing disability is not as serious as many offences which result in brain injury, disfigurement or partial or total disability. 23. I accept as mitigating factors those outlined by Ms Hutchinson, namely the plea of guilty, to which reference has been made, the clear expressions of remorse given both by the offender in evidence here and to Ms Duffy and Dr Furst. Ms Hutchinson also puts that the offence was not part of a planned, organised criminal activity, and refers to evidence in which the offender candidly acknowledged that by arming himself he had contemplated the possibility of violence, but also refers to evidence given by him that he intended to go to the Police station to report what had happened. 24. I am unable to accept his assertion that he was intending to go to the Police station in the circumstances that I have outlined. However, it is strictly true that there was no planned or organised activity. I accept that there are reasonable prospects of rehabilitation if a treatment regime, as outlined by Dr Furst was pursued. 25. I turn then to the question of mental health. As Johnson J recently said in Tuncbilek v R [2020] NSWCCA 30 at [64], "Apart from the impact of the matters raised concerning the Applicant's mental condition and its role in an assessment of objective seriousness and moral culpability, the Applicant's mental condition was relevant as well to issues of specific deterrence, general deterrence and protection of the community in the well-known respects identified in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and Aslan v R [2014] NSWCCA 114 at [33]. This is not to say that consideration of these aspects leads to automatic consequences favourable to an offender on sentence. Protection of the community may loom large as a factor to be considered as well as the impact of an offender's mental condition on issues of specific deterrence and general deterrence." 1. There is no challenge to Dr Furst's proposition that Mr Allen suffers bipolar disorder type I and a borderline personality disorder. His impulsivity is well documented. His lengthy history of emotional instability and impulsivity as a consequence of his underlying borderline personality disorder and were very relevant clinical features at the time of the offending. He has been examined and treated for a range of mental health conditions and completed some of his schooling at a special school for adolescents with mental health issues. 2. He was not taking any prescribed medication at the time of the offending and, as the Crown points out, the lengthy documentary evidence in Exhibit B and summarised in the chronology which became Exhibit E reveal several recurring themes, namely knives, relationship break‑ups and obsession with self‑defence, mania and lack of treatment, and they do legitimately raise concern as to the offender's ongoing risk to the community. 3. I take into account, as the offender himself has boasted on social media, the fact that he says he carries a knife with him every single day. An ex‑girlfriend noted that he often played with knives and had a fascination with knives in general. He described in March 2010 to a Justice Health nurse, paranoia of Police, and of buying a knife to protect himself, that he stabbed people who came to his front door and needed to buy a knife to feel safe. He told Mr Borenstein that he slept with a knife under his pillow from age 12. 4. There are a number of instances of the offender assaulting others or committing offences when he does not get his way in a relationship, as referred to in Exhibit E and summarised in the Crown's written submissions, namely assaulting a girlfriend in 2008 when she refused to go with him, again in 2008 repeatedly calling and messaging a girlfriend in breach of an AVO, ofbreaking an ex‑girlfriend's phone in 2009 when she would not allow him to see it, and a month later assaulting a girlfriend on two separate days because she would not go home with him, telling hospital staff that he held her hostage for 16 hours because he could not bear to be without her. 5. In April 2009 he was arrested and taken to hospital under s 33 of the Mental Health Act 2007 and he made attempts at self‑harm. 6. Further offences committed between 2009 - 2018 are included in Exhibit E , in particular the aggravated take and detain episode in 2010 when he accused his girlfriend of cheating on him and carved his symbol into her chest so that everyone would know that she was his property, that of course being the matter for which Wells DCJ imposed the sentence to which I have referred. 7. After his release there was an episode in June 2014 where he punched his girlfriend repeatedly and choked her after a relationship breakup. He was paranoid that the person who broke up with him was punishing him for sadistic reasons.In August 2014, he was scheduled by Dr Scott due to sending threatening text messages to his ex-girlfriend, and in October 2017 he was recorded as having choked a female friend unconscious. 8. The Crown quotes his own words that he has a feeling of intense paranoia, fear and hatred when someone he cares about leaves him. He has stated that he is "a serious proven and immediate danger to myself including those closest to me and to anyone who gets in between the former and later". 1. Sadly, as the Crown points out, it is almost inevitable that the offender will experience difficulties in any future relationship, which makes his risks of reoffending a significant matter to take into account, notwithstanding the finding as to the attempts to rehabilitate which should continue in custody and on release in accordance with the prescriptions of Dr Furst. 2. It is clear for the reasons summarised by the Crown under the heading "Mania" in the written submissions, that there was recent evidence of his medical conditions being operative in a way, which in my view, leads to some modest reduction in moral culpability. 3. In May 2018, the offender posted the following message. "I'm depressed. Fuck bipolar. Over the past decade I've gotten pretty good at hiding it but I don't seem to have gotten good at supressing it. I'm drinking too much. Even when I go to the gym I drink before. I need to stop. Really, I need to take a mental health week off. I need to go to the gym every day and not worry about bullshit and not drink and take Valium again until I'm steady. Notwithstanding that post we had spent about $1500 at bottle shops and hotels in the six weeks leading up to the offending". 1. In October 2017 it seems, according to exhibit C, tab 4, the offender posted a comment which included the following, "I have bipolar disorder type 1 and when I'm fully manic, I'm not capable of feeling fear. Fear during mania is very bad for me. When I'm manic, I'm everyone's friend and great company, but I react violently to fear or threat. I went to prison once for related reasons and I'm determined not to let myself act like that again." 1. On the other hand, there is evidence in exhibit C, including letters which he has written while in custody, including on 6 October 2018 in which he describes himself as being in shape, smart, that he likes helping people and that he has been refusing offers of illegal substances while in custody. 2. He is clearly remorseful, as I have indicated, and his presentation in evidence was given in a clear, coherent, and intelligent manner, indicative of someone who can accurately describe his current conditions. 3. Dr Furst said that his well-documented and lengthy history of emotional instability and impulsivity as a consequence of his underlying borderline personality disorder, were the most relevant clinical features operating at the time of his offending. That statement was made in answer to the question on whether the conditions contributed to his involvement in the commission of the offence. As Dr Furst acknowledged, that was the way in which he answered the question as to causative links between any mental conditions and the offending. 4. There is, as the Crown points out, evidence of the offender acknowledging that his mental health condition required treatment to remain under control. He was told this much by Wells DCJ on sentence in 2011. In his May 2018 Reddit post he said, "I can't afford to lose my job at the moment or get into legal trouble. If I let this go untreated, one or both of those things is going to happen." 1. He acknowledged that upon his discharge from Royal Prince Alfred Hospital in October 2017, having been given psychotropic medication, he had been told by medical staff that he needed longer term follow up and should find a new psychiatrist. 2. He acknowledged periods of stability while he was compliant with medication and it was clear that his prognosis depends on his adherence to both pharmacological and psychological treatment. He had been diagnosed as early as 2011 by Dr Nielsen with a psychotic illness, in remission and that diagnosis was taken into account by Dr Furst on his review of the material. 3. Despite testing, Ms Duffy was unable to diagnose post‑traumatic stress disorder and she acknowledged that he showed a tendency to under report undesirable characteristics and the extent or degree of negative or unpleasant aspects of himself, or, as the Crown points out using the offender's own words, "If you let me I'll talk my way out of this. I've talked my way out of handcuffs two dozen times. The thing controlling me is very, very good at seeming sane. Do not let it trick you." 1. The evidence is that the offender has been well behaved in custody and has a trusted position as a sweeper, working in the laundry and the quarantine wing. He has ceased illicit drug use and he possesses a number of strengths, which are positive indications for a relatively smooth treatment process if he commits to treatment, which is, as I have indicated in light of his history, a matter that will have to be approached with, at best, guarded optimism. 2. I take into account what Ms Hutchinson describes as social deprivation in the history given to Anita Duffy of being physically assaulted by his stepfather and biological father as a child, and being told at age 12 that the man he believed to be his father was not. His mother neglected and abused him so that he was estranged from his mother and brother and only had contact with one of his half‑sisters. Dr Furst considered that history to be clinically significant in his diagnosis of borderline personality disorder. 3. I indicated in an earlier section of these remarks that it was common ground that a 10% discount for the utilitarian value of the plea should be allowed. That was acknowledged by Ms Hutchinson in her written submissions in light of s 25D of the Crimes (Sentencing Procedure) Act 1999. However, on receipt of further instructions, Ms Hutchinson's solicitor indicated that there had been a discussion with the Crown in July 2019 in which, to put it shortly, the Crown said that it would not be heard against the allowance of a 25% discount in the circumstances, but that it was obliged to rely upon the recent legislative amendments which restricted the discount to 10%. 4. Ms Hutchinson put, in reliance upon what Howie J said in R v Borkowski [2009] NSWCCA 102, that there may be a further unquantified allowance for remorse. It is, as far as I am aware, an open question as to whether the principles set out in R v Borkowski [2009] NSWCCA 102 have been rendered otiose by s 25D). But, I will, as I have indicated, take into account the expressions of remorse which I accept in imposing the ultimate sentence. 5. I accept that there is a basis for a finding of special circumstances, notwithstanding the Crown's submission. The non‑parole period must, of course, reflect the minimum period that the offender should spend in custody having regard to all of the elements of sentencing, including objective seriousness and the strong need for deterrence and denunciation. The Crown submits that the standard statutory sentencing ratio would provide the offender with ample time to be supervised. In my view, there is a basis for a modest reduction given the offender's relative youth and demonstrated need for strict supervision upon ultimate release. 6. The orders that I make are as follows: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 7 years, 3 months, to commence on 15 July 2018. 3. I impose a non-parole period of 4 years, 3 months, expiring on 14 October 2022. 4. I find special circumstances. 5. The back‑up offence, sequence 4, the recklessly cause grievous bodily harm, is withdrawn. 6. I order the destruction of any illicit drugs and prohibited weapons seized during the search of the offender's residence. Note – These extempore remarks were revised without access to the court file. ********** 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: 01 September 2020