District Court New South Wales Medium Neutral Citation: R v Smolinksi; R v Steele [2020] NSWDC 651 Hearing dates: 10 July 2020 Date of orders: 04 September 2020 Decision date: 04 September 2020 Jurisdiction: Criminal Before: Bright DCJ Decision: Smolinski - Aggregate sentence of five years imprisonment with a non-parole period of three years. Steele - Aggregate sentence of six years imprisonment with a non-parole period of three years and seven months. Catchwords: SENTENCING — Relevant factors on sentence — Co-offenders — Parity SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Cahyadi v R (2007) 168 A Crim R 41 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 KR v R [2012] NSWCCA 32 Lowe v R (1984) 154 CLR 606 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Newell [2004] NSWCCA 183 Stevens v R [2017] NSWCCA 216 Category: Sentence Parties: Regina (Crown) Mitchell Smolinski (Offender) Nathan Steele (Offender) Representation: Counsel: Mr N Moir (Offender Smolinski) Mr S Healy (Offender Steele) Solicitors: Mr R Boyd, Director of Public Prosecutions (Crown) Mr D Spencer (Offender Smolinski) Ms H Dean, Legal Aid (NSW) (Offender Steele) File Number(s): 2019/00208721 2019/00203849 Publication restriction: Nil Judgment 1. Mitchell Smolinski, 27 years and Nathan Steele, 42 years each appear for sentence in relation to the following two offences: 1. Recklessly cause grievous bodily harm in company, an offence pursuant to s 35(1), Crimes Act 1900 (NSW). The maximum prescribed penalty for this offence is 14 years imprisonment. There is a prescribed standard non-parole period of 5 years imprisonment. 2. Specially aggravated detain in company with intent to commit serious indictable offence (assault occasioning actual bodily harm) and at the time of the commission of the offence actual bodily harm was occasioned, an offence pursuant to s 86(3), Crimes Act. The maximum prescribed penalty for this offence is 25 years imprisonment. There is no prescribed standard non-parole period. 1. Each offender pleaded guilty on 21 April 2020 at the Wyong Local Court. 2. Having regard to the timing of the pleas, I propose to allow a discount on sentence of 25% in respect of each offender. 3. The offender Smolinski has been in custody since his arrest on 15 July 2019. During that time he has served a non-parole period of 10 months for an aggregate sentence between 15 July 2019 and 14 May 2020. The sentence imposed today will be backdated to 15 May 2020. 4. The offender Steele has been in custody since his arrest on 1 July 2019. Accordingly, the sentence imposed today will be backdated to that date. Crown material on sentence 1. The Crown tendered the following material on sentence in relation to the offender Smolinski: 1. Exhibit A - Crown material; 2. Exhibit B – Video recording; 3. Exhibit C – Crown written submissions; and 4. Exhibit D – Facts in relation to Local Court aggregate sentence. 1. The Crown tendered the following material on sentence in relation to the offender Steele: 1. Exhibit A – Crown material; 2. Exhibit B – Video recording; and 3. Exhibit C – Crown written submissions. 1. During the sentence proceedings Exhibit B was played to the Court. The video is approximately 10 seconds long. The Agreed Facts 1. In early 2019 the victim, Isaac Devitt-Mckew, moved into a shed at 120 Arizona Road, Charmhaven. The offender Smolinski was living at this property and let the victim move in with him because he had nowhere to live. The lessee of the property was Paul Deligiannis and he allowed the offender Smolinski to reside there as the caretaker. The offender Smolinski had been living in the shed since November 2018. 2. The property at Arizona Road contains a large three door industrial shed and a single storey brick dwelling. The victim slept in a small room in the corner of the shed which contained a small single bed and bed side table. 3. In May 2019, the offender Smolinski stopped living in the shed. On 17 June 2019, Smolinski moved into his mother's property at Budgewoi. Sequence 3 – Reckless GBH in company 1. In the early hours of the morning on 26 June 2019 the offenders Smolsinki and Steele entered the shed located at 120 Arizona Road, Charmhaven. The victim was inside asleep. The victim woke up to Smolinski and Steele standing at his bedroom door. The victim said, "Who the fuck's that" and grabbed a homemade weapon, a long piece of wood with a butcher knife attached to the end of it and started swinging it while remaining in his bed. 2. The victim attempted to protect himself and the offender Steele picked up a metal bar within the room and swung it at the victim. The bar hit the victim's finger, severing the top of his right little finger which remained attached by skin only. The offenders Smolinski and Steele then continued assaulting the victim. The offender Smolinski said, "Oh look at his finger, hahaha, let's get another one off." The offenders Steele and Smolinski continued assaulting the victim for about 15 to 20 minutes. Sequence 4 (Smolinski)/Sequence 6 (Steele) - Detain person in company with intent to commit serious indictable offence (assault occasioning actual bodily harm) 1. The offenders Steele and Smolinski discussed what they were going to do with the victim. The offender Smolinski said, "Tie him up, get rid of him. I'll take him to the bush." The victim thought he was going to die. The offenders Steele and Smolinski were saying that they could not let the victim stay or go because he was going to talk. Both offenders interrogated the victim accusing him of sleeping with Steele's ex-partner and taking some of Smolinski's property. The offender Smolinski zip-tied the victim's hands and feet together while the victim was on his bed using industrial style cable ties. While the victim was tied up he was also assaulted. 2. The victim was able to slip out of the hand restraints quickly but his feet remained tied up for another 15 to 20 minutes. At that point, the offender Steele cut the restraints off the victim's feet with a knife. 3. During the course of the incident one of the offenders recorded footage of the victim. The footage shows the victim seated up against a wall covered in blood. The victim appears distressed. A male voice can be heard saying, "Smile again for the boys." The victim has his hands up protecting his face and says, "I will." A male voice says, "Say happy days, look at my finger. Peace sign cunt, give us a peace sign cunt." The injury to the victim's little finger is visible and his hand is covered in blood. The camera focuses in on the injury to the victim's finger. 4. After the victim was untied the offenders Steele and Smolinski became concerned about the victim's injuries. The victim said, "Look, I'll just get in the shower" and he got into the shower and cleaned himself up a bit. The offender Steele helped the victim get dressed and put the victim in his car, which was parked outside, to take him to hospital but his car got bogged. 5. The offender Steele called a taxi for the victim and he was allowed to walk out the front of the property to wait for the cab. The offenders Smolinski and Steele remained at the property and tried to remove the car from the mud. 6. The victim decided to walk about 500 metres to the NSW Rural Fire Service Station on Arizona Road, Charmhaven to seek medical attention. The victim arrived at about 9:50am and approached an employee named Kathy Burn. The victim said he needed help and Burn called triple-0 and requested an ambulance. Burn observed cuts on the victim's head and saw that he was cupping his left hand. The victim said, "I think I've lost my little finger, it's just hanging on. I can't touch my hand." The victim eventually sat down and was rocking back and forth. He got a bit teary and said, "I thought they were gonna kill me." 7. A short time later an ambulance arrived and started treating the victim. Police arrived and saw the victim sitting in the doorway of the ambulance. The victim had a number of injuries, including a large laceration to the middle of his forehead, other smaller lacerations and red marks on his arms, face and head area. The victim's finger was being treated. 8. Police activated a body worn camera and the victim stated that if he said anything he would be killed. The victim was shaking and upset whilst talking to police. Injuries to the victim 1. The victim was conveyed to John Hunter Hospital. The victim presented with the following injuries: 1. Multiple lacerations and abrasions to his head and right black eye; 2. Multiple long bruises on his back; and 3. Partially amputated right little finger. 1. A CT scan was undertaken which showed that there was a comminuted fracture of the left orbital floor with partial herniation of the inferior rectus muscle. No fracture was observed in the skull base or elsewhere. 2. On 28 June 2019, the victim underwent surgery on his right little finger which was removed. On 29 June 2019, the victim was discharged with follow up appointments arranged. Attendance of Police at 120 Arizona Road, Charmhaven 1. At about 10.30 am, police arrived at 120 Arizona Road, Charmhaven. They saw the offenders using jacks and other equipment trying to free the vehicle that had become bogged. Police told the offenders that they were investigating an assault and cautioned them. Police asked them if they lived at the property and they both said "no". Police asked the Accused why they were at the property and the offender Steele said, "We just came here to clean up for the bloke who leases this place. His lease runs out soon. We've only been here for about 2 hours…We just got here and we got bogged and been trying to get the car out ever since." 2. Police asked the offender Smolinski if he used to live at the property and he said "Yeah". He was asked if he knew the victim and he replied, "Yeah, I haven't seen him for a while though." Police asked if the victim lived there and the offender Steele said, "No one's supposed to live here. The house is empty and the sheds and the yards are getting cleaned out." Police asked each offender if they knew how the victim received his injuries and the offender Smolinski said "Nuh". 3. Police observed what appeared to be blood on the offender Steele's right Nike shoe. Police asked him if it was blood and he said, "No, probably just something I stepped in." Police seized the offender Steele's shoes. 4. Police subsequently entered the shed and went into the victim's bedroom where they observed a large amount of blood smears over the walls near the bed. Police located what appeared to be a small pile of items that had been burnt, including a knife blade. 5. Both offenders were told that the property was a crime scene and they would need to leave. They both left the property. 6. Crime scene police attended and examined the property, seizing various items. 7. Subsequent analysis revealed that the offender Steele's DNA was recovered from a trace swab taken from the bedroom/living quarters in the shed. The offender Smolinski's blood was identified from a blood swab taken from the bedroom/living quarters in the shed. Text messages between the offender Smolinski and Deligiannis 1. A series of text messages between the offender Smolinski and Deligiannis were obtained by police. 2. On 25 June 2019 at 7.26 am, Deligiannis sent Smolinski a text message which read, "I need the key and moving stuff. Ring me urgently." 3. On 30 June 2019 at 7.23 pm, Smolinski sent Deligiannis a text message which read, "My mum even showed me msgs from Isaac telling her to fuck him n sent her nudes n shit aye by the way." Deligiannis replied, "Tell that to the cops mate." 4. In a series of text messages, Deligiannis encouraged the offender Smolinski to hand himself in to police. At 7.45 pm, Smolinski sent a text message which read, "Isaac can change the statement." Deligiannis told the offender Smolinski to tell police his side of the story. The offender Smolinski sent a text message which read, "Why I've been bashed worse than that just didn't lose part of my finger." Deligiannis replied, "Anyway I have advised you. Now it's up to you." The offender Smolinski said, "Plus nobody believes me most of the time as if the cops would I'm over it aye Isaac clearly needs more learning first." Deligiannis sent a text message which read, "It's not up to me. It's the cops you have to speak to." The offender Smolinski replied, "I'll find Isaac first." Text messages between the offender Smolinski and Jeanette Smolinski 1. A series of text messages between the offender Smolinski and his mother Jeanette Smolinski were obtained by police. 2. On 30 June 2019 at 7.50 pm, the offender Smolinski sent a message to his mother which read, "Show me all the msgs Isaac sent ya". His mother replied, "Was it you with the knife attack?" Smolinski sent a text message which read, "Nah didn't. What the other guy was doing was pretty sickening." His mother replied, "Why does he look like that?" The offender Smolinski said, "Not from me from the guy Nathan that was there too….I wanted to make Isaac unlock he's phone to see some conversations that other people notified me of n that but I didn't even get that sort of a chance. I don't even know what Isaac got hit with but wasn't getting stabbed with a knife I think it was like a long skinny steel bar it looked like in the darkness." Arrest of the offender Steele 1. On 1 July 2019, police arrested the offender Steele. He was cautioned. Steele said, "Yes, I'm so sorry. It's the drug. The ice." 2. He was taken to Wyong Police Station. 3. The offender participated in a recorded interview with police. During the interview he told police, inter alia, that he wanted to speak the truth. He said that he was asked by the offender Smolinski to remove the victim from the premises. They turned up between 3 am and 4 am. They entered the property with Smolinski's key. When they entered the victim produced a knife on a stick, Steele then grabbed an iron bar. Steele hit the stick with the knife out of the victim's hands. He swung the iron bar at the victim at least six times and knows he hurt him. He then dropped the bar and attended to the victim. 4. Police asked Steele if the victim was tied up with cable ties and he said, "For some reason he was, wasn't me, it would have been the other person there." The offender Steele said he untied the cable ties but he was tied up for about half an hour to an hour. 5. The offender Steele told police that he knew he should have called an ambulance but, "When you're that fucked up on drugs you just - some things you remember, some things you don't." He told police that he was sorry, that he did not mean to hurt the victim so much and, "I need to learn a lesson because obviously I'm not doing it right out there at the moment." Arrest of the offender Smolinski 1. On 15 July 2019, police arrested the offender Smolinski. 2. He was taken to Gosford Police Station. 3. The offender Smolinski participated in a recorded interview with police. He told police, inter alia, that he found out that the victim had sent nudes to his mother and some of his property went missing and the victim sold some of it. 4. He told the police that the offender Steele had driven them to the victim's place, that he had unlocked the door and they both went into the shed. He told police it was pretty dark inside but he could hear a lot of screaming. He does not know where the "knife thing" came from but some time previously he had taped a knife to a broomstick. He thought the victim had grabbed it to defend himself. He told police he did not have anything in his hand when he went into the property. He told police the victim's finger must have been injured when he put his hand up and was trying to block, "or something". 5. The offender Smolinski initially denied tying up the victim. He then told police that he had tied him up with cable ties. He said the cable ties were on the floor and they were cut off, "pretty much straight away." He then told police he felt he had to help the victim for some reason. Assessment of objective seriousness 1. Those facts clearly disclose very serious objective criminality. The victim was confronted by the offenders at a time when he was sleeping. He was then struck causing a serious and permanent injury to his finger. Notwithstanding his serious injury and the obvious need for urgent medical attention he was then detained for a number of hours. Both general and specific deterrence are important considerations on sentence. 2. In assessing the objective seriousness of the offence of recklessly cause grievous bodily harm in company, I have taken into account the general sentencing principles enunciated in Stevens v R [2017] NSWCCA 216 at [40]-[41]. Specifically, I have taken into account the following factors: 1. The victim was struck with a metal bar being swung by the offender Steele that partially severed his right little finger. In circumstances where the offender Steele was responsible for the infliction of the injury, I regard him as more culpable for this offence having regard to his role. 2. Both offenders then continued to assault the victim for 15 to 20 minutes. 3. The offender Steele told police that he swung the metal bar at the victim's hands at least four to six times. 4. There was a threat of further violence. The offender Smolinski said, inter alia, "let's get another one off". 5. The nature of the grievous bodily harm occasioned - The victim suffered a permanent injury in circumstances where he underwent surgery to amputate his right little finger. He spent three days in hospital. 6. Whilst I am satisfied that the offenders attended the victim's premises in order to confront the victim about various grievances, I am not satisfied there was any planning in relation to the commission of this offence. 1. The Crown submitted that this offending was just in the middle of the range. 2. Mr Moir of Counsel on behalf of the offender Smolinski submitted that the offending falls at the mid-range. 3. Mr Healy of Counsel on behalf of the offender Steele agreed with the Crown's assessment of the objective seriousness. 4. Having regard to above factors, I assess the objective seriousness as being just in the middle of the range. 5. In assessing the objective seriousness of the offence of specially aggravated detain, I have taken into account the general sentencing principles enunciated in R v Newell [2004] NSWCCA 183 at [32]. Specifically, I have taken into account the following factors: 1. The length of the detention was for several hours. It is agreed between the parties that the offenders arrived at the victim's premises between 3 am and 4 am and the victim arrived at the Rural Fire Service to seek assistance at 9.50 am. 2. At the commencement of the detaining shortly after the victim's finger had been severed, his hands and feet were tied by Smolinski with zip ties. Whilst he slipped out of the hand ties, his feet remained tied for 15 to 20 minutes. While the victim was tied up he was also assaulted. 3. Smolinski said to Steele "get rid of him". The victim thought he was going to die. 4. During the detention the offenders recorded footage of the victim with his injured finger being held up (Exhibit B). During the recording the offenders are making gratuitous remarks to the victim. 5. The particularised purpose of the detention was to commit a serious indictable offence, namely assault occasioning actual bodily harm. The offence of assault occasioning actual bodily harm has a prescribed maximum penalty of 5 years. This is the minimum penalty for an offence to be a serious indictable offence and fall within this offence. 6. The actual bodily harm sustained during the detention (excluding the grievous bodily harm the subject of Sequence 3) – a large laceration to the middle of his forehead, other smaller lacerations and red marks on his arms, face and head area. Hospital records disclose a right black eye and multiple long bruises on his back and multiple lacerations and abrasions to his head and a comminuted fracture of the left orbital floor with partial herniation of the inferior rectus muscle. 7. The co-offender Steele removed the victim's restraints and later attempted to take him to hospital. Once the vehicle became bogged, the victim was released by the offenders. 1. I regard the offenders as equally culpable for this offending in circumstances where whilst the offender Steele was not involved in tying the victim up, he was involved in the infliction of actual bodily harm. 2. The Crown, Mr Moir and Mr Healy all submitted that the objective seriousness of this offence was in the middle of the range. Having regard to the above factors, I accept those submissions. Aggravating factors 1. The Crown relied upon the following aggravating factors in relation to both offenders: 1. Each offence was committed in the home of the victim. 2. The offence of recklessly cause grievous bodily harm involved the use of a weapon, namely a metal bar. 3. The offence of specially aggravated detain with intent to commit serious indictable offence involves gratuitous cruelty namely, filming of the victim and ordering him to demonstrate his earlier injury for the camera. 1. I accept that each of those aggravating factors is established. 2. The Crown relied upon one additional aggravating factor in relation to the offender Smolinski, namely that he was on conditional liberty at the time of the offending in circumstances where Community Correction Orders had previously been imposed at the Wyong Local Court on 12 June 2019, two weeks before this offending. I accept that aggravating factor is established. No victim impact statement 1. The victim Isaac Devitt-McKew did not provide a victim impact statement. Notwithstanding the absence of a victim impact statement, I have no doubt that the offending would have been to wholly terrifying for the victim. This is particularly so because during the commission of the offences he thought he was going to die. 2. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act 1999 (NSW)). Subjective circumstances – Smolinski 1. The offender Smolinski is 27 years of age. 2. His criminal history commences in 2012 when he was dealt with for offences of stalk and intimidate, destroy or damage property and contravene an Apprehended Violence Order. In respect of each of those offences he was placed on a section 9 bond. 3. In 2018, he was dealt with for offences of supply prohibited drug, self-administer prohibited drug and goods in custody. In respect of each of those offences he was placed on section 9 bonds. 4. In 2019, he was dealt with for offences of enter building with intent to commit indictable offence and possess implements to enter conveyance. In respect of each of those offences he was placed on a Community Correction Order for 12 months. He was also dealt with for an offence of possess ammunition in respect of which he was fined. 5. Later in that same year he was also dealt with for an offence of resist officer in the execution of duty, intimidate a police officer in the execution of duty, drive whilst disqualified, larceny and two charges of dishonestly obtain property by deception. He received Community Correction Orders for each offence. 6. On 31 March 2020, he was sentenced for one offence of break enter and steal and was also called up in respect of each Community Correction Order that had been imposed in 2019. He was sentenced to an aggregate term of imprisonment of 14 months with a non-parole period of 10 months. The non-parole period commenced on 15 July 2019 and expired on 14 May 2020. 7. Having regard to the offender Smolinski's criminal history, I am satisfied that it disentitles him to any leniency on sentence that would otherwise be available to a person of good character. 8. The following material was tendered on behalf of the offender Smolinski: 1. Exhibit 1 - Report of Dr Bench, forensic psychiatrist dated 1 June 2020; 2. Exhibit 2 - Report of Ms Belinda Preston, psychologist dated 24 September 2018; 3. Exhibit 3 - Justice Health report dated 26 September 2018; 4. Exhibit 4 - Letter under the hand of Dr Butler, Headspace dated 29 August 2018; and 5. Exhibit 5 - Written submissions. 1. The offender Smolinski also gave evidence during the sentence proceedings. 2. The offender's background is outlined in the report of Dr Bench (Exhibit 1), the Sentencing Assessment Report and the offender's evidence. 3. Dr Bench assessed the offender on 28 May 2020 via Audio Visual Link. 4. The offender was born in Blacktown. He has two sisters. He grew up in Sydney and then on the Central Coast. 5. The offender's parents separated when he was a young adolescent. The offender denied the presence of any domestic violence in that relationship. The offender reported that he was physically abused by his father who hit him with a belt or power cord. The offender has had no contact with his father for many years but remains close to his mother who lives in Budgewoi. The offender denied any history of sexual abuse as a child or adolescent. Education and employment 1. The offender attended North Lakes High School. He was assisted by a teacher's aid secondary to an intellectual disability and ADHD. The offender reported being suspended on many occasions for "bad behaviour" and fighting. He was expelled in Year 11. 2. After leaving school, the offender completed a hospitality course at TAFE. 3. Following this, the offender worked in demolition and metal fabrication for a few months respectively. The offender also reported working in fencing, as a brickies labourer, concreting and brick cleaning. The offender has been unemployed for six years. 4. The offender reported that his longest relationship was with a woman named Shaylee for nine months. They have no children. The relationship ended after the offender was stabbed by his partner. Substance use history 1. The offender reported lifelong use of alcohol commencing at 12 years of age. He reported being a heavy drinker from the age of 15 to the time of his arrest. 2. The offender reported daily cannabis use between the ages of 16 to 22. He reported occasional use of cannabis since the age of 22. 3. The offender reported that he commenced using amphetamines on a daily basis at the age of 19 after ceasing the use of Ritalin. He reported smoking around 1.75 grams of methamphetamines every one to two days. The offender has not used any amphetamines since his incarceration. 4. He did report smoking buprenorphine "a few times" when incarcerated but not in the last few months. 5. The offender reported that he has never participated in a rehabilitation program but expressed interest in commencing one. Whilst in custody, he attended Narcotics Anonymous, Crystal Methamphetamines Anonymous and Remand Addictions courses. However, since being transferred to Shortland Correctional Centre he has not been able to attend any groups. Medical history 1. The offender reported having had "a lot of head injuries" including being "bashed with a hammer". He reported suffering a loss of consciousness but had not sought medical attention. 2. The offender also reported falling off a roof at 19 years of age when he was intoxicated. He became unconscious and was admitted to hospital. The offender reported that as a consequence of the fall he suffered an acquired brain injury and is suffering long-term effects including poor short-term memory and impaired co-ordination. Mental health history 1. In relation to his family history, the offender reported that his father was diagnosed with ADHD. He also reported that his sister has bipolar disorder. He described his mother as an alcoholic. He denied any family history of suicide 2. The offender reported being diagnosed with ADHD at age 4. He experienced difficulties with inattention, "extra energy", fidgeting and sitting still. He described himself as being very impulsive and impatient. He was treated with Ritalin up to age 18 at which time the medication stopped being prescribed by his medical practitioner as the offender was found to be selling it. 3. The offender reported suffering from Autism Spectrum Disorder and an intellectual disability. He recalled having no friends as a child and finding it hard to fit in. The offender was in receipt of a Disability Support Pension for Autism Spectrum Disorder and an intellectual disability for many years. 4. The offender also reported being diagnosed with post-traumatic stress disorder. He was subjected to a number of different traumatic incidents including physical abuse by his father, and the death of a friend's father who he was caring for. The offender reported a history of nightmares, heart racing and a "rush of anxiety". He also reported difficulties with insomnia and hypervigilance. The offender stated that he used drugs and alcohol as a way to self-medicate. 5. The offender further reported experiencing difficulties with depression but was vague with the details provided to Dr Bench. He noted that he has impaired motivation, libido and insomnia. The offender denied engaging in any deliberate self-harm or suicidal ideation. Mental health at the time of offending 1. The offender was not on any psychiatric medication at the time of the offending. 2. At the time of his arrest, the offender was homeless and couch surfing. He was in receipt of the Disability Support Pension for ADHD, cognitive disability, Autism Spectrum Disorder, Post-traumatic Stress Disorder, anxiety and depression, and an acquired brain injury. 3. He said that he was drinking alcohol on a daily basis, between twenty and forty standard drinks. He had also been smoking methamphetamines every one to two days. He had been drinking Bailey's and had smoked one gram of methamphetamines in the car on his way to the location where the offences were committed. 4. I note at this stage that in determining the appropriate sentences, self-induced intoxication cannot be taken into account as a matter in mitigation: s 21A(5AA), Crimes (Sentencing Procedure) Act. 5. The offender reported to Dr Bench that he had been subjected to a lot of stressors at the time of the offence. He described his mood around the time of the offences as "angry" and said that he had not slept at all in the five to seven days preceding the offending. He also reported experiencing difficulties with paranoid ideation and reported looking out of his windows for several hours at a time. Assessment by Dr Bench 1. Dr Bench assessed the offender via audio-visual link from Shortland Correctional Centre. 2. In the opinion of Dr Bench, the offender met diagnostic criteria for Autism Spectrum Disorder, Antisocial Personality Disorder, Alcohol Use Disorder, Methamphetamine Use Disorder, and Attention Deficit Hyperactivity Disorder. 3. In relation to the presence of an intellectual disability, Dr Bench referred to the letter of psychologist Belinda Preston and noted that the offender does not meet the diagnostic criteria for intellectual disability. He noted that this was more consistent with borderline intellectual functioning. 4. The offender Smolinski had taken counselling sessions with Ms Preston in 2015, 2016 and 2018 (22 hours of Victim Services counselling). Ms Preston noted the following: "Mitchell was assessed for an intellectual disability. Mitchell scored 89 and was determined to have a below average level of intellectual functioning. In addition, Mitchell was assessed as meeting the diagnostic criteria for autism spectrum disorder. Further assessment would be beneficial to determine if Mitchell meets the criteria for antisocial personality disorder. Mr Smolinski meets the diagnostic criteria for autism spectrum disorder, post-traumatic stress disorder and mood disorder. He was assessed as experiencing a below average level of cognitive functioning, although he did not reach the criteria for an intellectual disability." 1. In the opinion of Dr Bench, the offender's substance use disorders and substance intoxication had likely been the significant nexus between any mental health issues and the offending behaviours. In particular, Dr Bench noted the offender's report that the offences occurred in an impulsive manner and this accords with the diagnostic criteria of Borderline Personality Disorder, ADHD and Antisocial Personality Disorder. Dr Bench noted that the offender's other mental health conditions have likely contributed via secondary or flow on effect in that the offender acknowledged his substance abuse was a form of self-medication. Remorse 1. In relation to how the offender felt about the offending, Dr Bench stated as follows: "When asked about the offences now, the defendant noted "I should have went about it a bit different…I feel good about it and I feel bad about it…he deserves something to be done about it. These things went a bit too far with him…I feel bad for going too far…I could have got the cops involved or something…none of this would have happened if I wasn't involved in drugs". He noted his engagement in the index offences has caused him to suffer "bad dreams"". Prognosis/treatment 1. In the opinion of Dr Bench, the offender's future prognosis and risk of re-offending depends largely on his capacity and willingness to abstain from substances. He recommended that upon release from custody the offender attend a residential rehabilitation program and engage in psychotherapy. He considered the offender would benefit from a referral to the local community Mental Health Team for psychiatric supervision and medication. 2. Dr Bench was of the opinion that whilst the offender was in custody he would benefit from assessment by a Justice Health psychiatrist and mental health nurse and that antidepressants or other medication may assist. Other material tendered on behalf of the offender - Smolinski Exhibit 3 - Justice Health report dated 26 September 2018 1. This report was prepared for Wyong Local Court. The report concluded that the offender Smolinski was suitable for diversion pursuant to the provisions of the Mental Health (Forensic Provisions) Act and made recommendations in relation to his treatment. Exhibit 4 - Letter under the hand of Dr Butler, Headspace dated 29 August 2018 1. Dr Butler is a GP working with Headspace (a youth mental health service). The offender Smolinski had been linked to Headspace since 2013. Dr Butler noted the following: "In summary, Mitchell has a mild intellectual disability as well as a complex trauma background resulting in chronic substance use as well as recurring symptoms of anxiety and depression, impulsivity and impaired distress tolerance linked to conduct disorder issues." 1. As at 2018, Dr Butler had not seen the offender Smolinski since 2016. The evidence of the offender - Smolinski 1. The offender Smolinski gave evidence during the sentence proceedings. He told the Court that he was very sorry for his actions and that his conduct went "way too far" and that the victim did not deserve what had happened to him. 2. In relation to the background to the offending, he gave evidence that certain things had been said to his mother. He now understands he could have gone to the police instead of taking action as he did. He told the Court that this is his first long period in custody and he is finding it difficult. He said in some ways he has benefited as he has had time to think about his future life and a career change. Submissions on behalf of the Crown - Smolinski 1. The Crown referred to general sentencing principles for the offence of recklessly cause grievous bodily harm (Stevens v R [2017] NSWCCA 216 at [40]-[41] and R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [27]) and specially aggravated detain (R v Newell [2004] NSWCCA 183 at [32]). 2. In relation to the assessment of objective seriousness when each offender participates in a joint criminal enterprise the Crown relied upon the observations of the Court of Criminal Appeal in KR v R [2012] NSWCCA 32 at [19]. 3. During oral submissions the Crown conceded that both offences would fall within the mid-range. In relation to the specially aggravated kidnapping offence, the Crown submitted it was towards the higher end. The Crown also conceded during oral submissions that there was no planning in relation to the commission of the offences in circumstances where the highest the Crown case goes is to establish that the offenders went to the premises intending to confront the victim about their individual grievances. Submissions on behalf of the offender - Smolinski 1. It was submitted on behalf of the offender Smolinski that he is an individual with significant long-term mental health issues and a long-term user of prohibited drugs. It was submitted that the Court would accept that having regard to his mental health issues, he is far from being a sophisticated individual and in those circumstances, some lack of remorse when speaking to Dr Bench is not surprising. Despite the limitations of his remorse, it was submitted that he does show some insight into the offending, now recognising that he could have dealt with the conflict in other ways. 2. It was submitted that having regard to the offender Smolinski's mental health and cognitive deficiencies (which include impulsivity) the Court may find a causal connection between the offending and the mental health issues. The Crown conceded during oral submissions that having regard to the report of Dr Bench, the Court could, to a limited extent, take into account a causal connection between his mental health issues and the offending. The Crown submitted that the mental health issues could also mean that the offender Smolinski presents as more of a danger to the community (relying on the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1). Relevance of mental health - Smolinski 1. Having regard to the available evidence, I am satisfied that the offender Smolinski suffers from Autism Spectrum Disorder, Antisocial Personality Disorder, ADHD, and alcohol and methamphetamine use disorder. Whilst he does not meet the diagnostic criteria for intellectual disability, I accept the evidence of Dr Bench that his IQ of 89 is consistent with borderline intellectual functioning. 2. The relevance of an offender's mental health is summarised in Director of Public Prosecutions (Cth) v De La Rosa. McClellan J at [177] summarised the principles in the following way: 1. 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. 2. 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. 3. 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. 4. It may reduce or eliminate the significance of specific deterrence. 5. 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. 1. His Honour stressed that the mental health problems of an offender need not amount to a serious psychiatric illness before they would be relevant to the sentencing process. 2. Having regard to the opinion of Dr Bench, I am satisfied there is a causal connection between the offender Smolinski's mental health issues and the offending. Whilst I accept that the conduct occurred whilst the offender was intoxicated, I am satisfied that his underlying mental health issues contributed towards his impulsivity. In those circumstances, I propose to moderate the otherwise appropriate sentence. I am also satisfied that because of the offender's mental health issues custody will be more onerous. Prospects of rehabilitation - Smolinski 1. The offender was assessed by Community Corrections as having a medium risk of reoffending. 2. I am satisfied that any view of the offender Smolinski's prospects of rehabilitation must necessarily be guarded in circumstances where he has long-standing mental health issues and also substance use issues. Whilst it is positive that he has been taking steps in custody to address his substance use issues, in circumstances where he is in the early stages of treatment, I am unable to find at this stage that he is unlikely to reoffend. 3. The Court is hopeful that upon release from custody he is able to continue to take steps to address his substance use issues and his mental health issues. Special circumstances - Smolinski 1. It was submitted on behalf of the offender Smolinski that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period. It was submitted the offender Smolinski would benefit from a longer period on parole having regard to the risk of institutionalisation, his drug and alcohol addiction and the need for rehabilitation. 2. I accept that submission and I propose to vary the statutory ratio between the non-parole period and the parole period pursuant to s 44(2B), Crimes (Sentencing Procedure) Act. Commencement date of the sentence – Smolinski 1. The offender Smolinski was serving a non-parole period of ten months between 15 July 2019 (his date of arrest for the current offences) and 14 May 2020. He has been in custody solely in relation to these offences since 15 May 2020. It was not suggested on behalf of the offender Smolinski that the Court would consider backdating the sentence further than 15 May 2020 taking into account the question of totality. 2. The facts in relation to each of the offences in respect of which the 10 month non-parole period was imposed have been tendered during the sentence proceedings (Exhibit D). 3. Having regard to the question of totality, I am satisfied that the sentence to be imposed for the current offences should be wholly cumulative upon the 10 month non-parole period served. Remorse - Smolinski 1. Whilst the offender Smolinski expressed limited and qualified remorse to Dr Bench, I am satisfied he now has a greater insight into the seriousness of his offending behaviour, having regard to the evidence he gave during the sentence proceedings. I accept he is remorseful. Subjective circumstances – Steele 1. The offender Steele is 42 years of age. 2. He has a criminal history commencing in 1996 (18 years of age) when he was dealt with for an offence of stealing. He received a fine. 3. In 1999, he was dealt with for offences of assault police in the execution of duty (2 charges), destroy or damage property and resist police. Those matters were dealt with either by way of a section 556A dismissal or a recognisance. 4. In 2003, he was dealt with for an offence of assault officer in the execution of duty and possess prohibited drug. He received a bond and a fine respectively. 5. In 2005, he was dealt with for an offence of contravening an apprehended domestic violence order. He was sentenced to a six month bond. 6. In 2007, he was dealt with for an offence of resist officer in the execution of duty and was sentenced to 100 hours of community service. 7. In 2008, he was dealt with for offences of drive whilst disqualified and fail or refuse to undergo a breath test. He was sentenced to 4 months imprisonment in respect of each offence. On appeal the sentences were varied to a bond and four months periodic detention. 8. In 2008, he was dealt with for an offence of common assault and an offence of contravening an Apprehended Violence Order. In relation to each offence, he was sentenced to an 18 month bond. He was called up in respect of each matter and was sentenced to four months imprisonment. On appeal that was varied to three months periodic detention. 9. In 2010, he was dealt with for one offence of common assault and received a term of imprisonment of two years with a non-parole period of 18 months. He was also dealt with for an offence of recklessly cause grievous bodily harm and was sentenced to a fixed term of imprisonment of eight months. 10. In 2012, he was dealt with for an offence of assault occasioning actual bodily harm (domestic violence) and sentenced to 18 months imprisonment with a non-parole period of 9 months. He was also dealt with for an offence of destroy or damage property and sentenced to six months imprisonment. 11. In 2015, he was dealt with for an offence of destroy or damage property and was sentenced to a bond. He was also dealt with for an offence of common assault and sentenced to a Community Service Order for 200 hours 12. In 2018, was dealt with for two offences of contravening an Apprehended Violence Order. In respect of one offence he was fined. In respect of the other offence, he was sentenced to four months imprisonment. 13. The offender Steele also has a Queensland criminal history. 14. In 2015, he was dealt with for an offence of assault or obstruct police and was fined. 15. Having regard to the offender Steele's criminal history, I am satisfied it disentitles him to any leniency on sentence. Also, in circumstances where he has previously served terms of imprisonment for offences of violence, specific deterrence is an important consideration on sentence. 16. The following material was tendered on behalf of the offender Steele during the sentence proceedings: 1. Exhibit 1 - Report of Gina Lattas, Forensic Psychologist, dated 27 June 2020; 2. Exhibit 2 - Justice Health records; and 3. Exhibit 3 - Defence written submissions 1. The offender Steele also gave evidence during the sentence proceedings. 2. The offender Steele's background is outlined in the report of Ms Lattas and the offender's evidence. Ms Lattas assessed the offender for two hours via audio visual link on 29 May 2020. 3. The offender is the only child born to his parents' union. He has three younger half-siblings on his mother's side and two younger half-siblings on his father's side. 4. His parents separated when he was two years old. He reported that domestic violence was present within his parents' relationship. The offender's father was not present following the separation. 5. He reported having a distant relationship and poor attachment with his mother when he was young. His mother had a number of male partners during his childhood and consequently, he had no stable father figure. 6. The offender reported that he was subjected to prolonged sexual abuse between six and nine years of age by a family who regularly babysat him. He was hospitalised as a result of injuries, however his mother did not believe him when he told her how the injuries were sustained. 7. The offender's mother began a relationship with his stepfather when he was 8 years old. They have three children together. 8. The offender reported that he was physically assaulted on many occasions by his stepfather who was a violent alcoholic. The abuse included being pushed and kicked on the ground. 9. The offender reported that he began rebelling at 9 years of age and suffered severe physical abuse from his mother. He reported that his mother would 'beat' him, 'crack whips and sticks' on him and drag him by the hair. The abuse from his mother ceased when the offender was 14 years of age and his stepfather left the family. 10. He reported having a significant caregiving responsibility for his half-siblings from the age of 14 to 18 years. He reported bathing, feeding and putting the children to bed. This fostered a close relationship between the offender and his siblings. 11. He reported having only met his biological father twice during late adolescence. On both occasions, the offender ran away due to his father's violence. 12. The offender reported having a close, positive relationship with his maternal grandmother who passed away roughly 2 years ago. 13. The offender reported two previous relationships. He has an 18 year old daughter with his first partner. He is not sure whether a child of his second partner is his, having regard to the nature of their relationship. Education and employment 1. The offender attended three or four different primary schools due to relocating to live with his mother's many partners. The offender left school after completing Year 11. He reported an unremarkable schooling history. He noted he excelled at sport and was popular amongst his peers. 2. The offender began working in hospitality at 17 years of age and eventually became a full-time cook. He worked on a farm between the ages of 18 and 19 and then as a builder/labourer for two years before working full-time in food processing for five years. 3. The offender started his own labouring business in home and yard maintenance when he was 30 years old, which he still worked in prior to his incarceration. He then started a second business in custom home furniture when he was 35 years old. 4. In addition, the offender still also worked as a mechanic on the weekends at the time of the offending. At the time of the offending, he worked between four and seven days a week. He did not report any lengthy periods of unemployment. Medical history 1. The offender reported that he is currently being monitored at Long Bay Hospital due to an irregular heartbeat that appears mostly at nighttime. 2. Justice Health medical records (Exhibit 2) support this and indicate that he is being monitored for a non-symptomatic irregular heartbeat. 3. The offender reported a number of head injuries over the past 20 years. Justice Health records also indicate that the offender incurred a head injury after being assaulted in 2018. Substance use history 1. The offender Steele reported a family history of alcoholism. 2. The offender began consuming alcohol at the age of 18 years and drank regularly from that age, reporting that he would be intoxicated most days during the week. 3. He stopped drinking while incarcerated when he was 30 years old, after joining Alcoholics Anonymous. The offender began to facilitate Alcoholics Anonymous groups in custody and began running Alcoholics Anonymous courses. 4. The offender reported that he only experienced one lapse in abstention from alcohol which occurred approximately two years ago and lasted for three months. He attributed his lapse to difficulties coping with a relationship breakdown during that time. 5. He reported using cannabis daily from the age of 16 to 18 years as a coping mechanism to numb sensations. He reported that he detoxed for a year at his grandmother's farm when he was 18 years of age. He then ceased cannabis use when he was 22 years old and has maintained abstinence since that time. 6. He reported he began using methamphetamine (ice) approximately 2 years ago. He reported using it on a daily basis, costing $500 per week. He attributed his methamphetamine use to difficulty coping with a relationship breakdown with his daughter's mother and reported that he would use methamphetamine to get 'high' and numb painful emotions. This continued for approximately one year and the offender ceased methamphetamine use upon his incarceration. 7. The offender reported that his father was diagnosed with Dissociative Identity Disorder and Bipolar Disorder. 8. The offender reported a history of seeking psychological support to address events from his past as well as substance use. He reported that when he was 21 years old, he attended three sessions at the Mental Health Clinic at Wyong to address his alcohol use. Between 36 and 39 years of age, he attended psychological therapy with psychologist Mr Adam Wiseman. His treatment focussed on processing emotions and building identity. 9. The offender advised that he has never previously received a formal mental health diagnosis. 10. He reported that he has been prescribed anti-anxiety and antidepressant medications from 30 years of age. He is currently prescribed antipsychotic medication and an antidepressant. 11. He did not report any previous or recent history of suicidal ideation or suicide attempts. The offender did report a pattern of reckless behaviours that were self-damaging. Mental health at the time of offending 1. At the time of offending, the offender was experiencing symptoms of poor motivation, reduced appetite, insomnia, difficulty concentrating, poor memory and emotional numbness. In the opinion of Ms Lattas, this was likely to be connected to drug use. 2. The offender also reported feeling lost and having a lack of goals and purpose in his life. Ms Lattas noted that these symptoms have subsided almost completely since the offender entered custody and began abstaining from substances. The offender attributed this to the development of his relationship with God and having increased contact with his family. 3. In the opinion of Ms Lattas, during the clinical interview the offender displayed characteristics consistent with Antisocial Personality Disorder including aggressiveness, history of deceitfulness, disregard for the safety and rights of others, recklessness towards his own safety (for example speeding, driving whilst intoxicated, substance abuse) and low levels of remorse (that is, rationalisations for hurting others), in addition to reoccurring offending behaviours. 4. Ms Lattas noted that the offender's rebellious and aggressive behaviours started during adolescence. Previous offending 1. Ms Lattas noted that the offender acknowledged that his past criminal offending has resulted in serious injuries for others including almost ripping another man's ear off and partially amputating a man's finger (the current offence). 2. Ms Lattas was of the opinion that the offender tried to justify or rationalise his behaviour "suggesting that he is likely to hold attitudes that support the use of violence as retribution and problem solving". Attitude to offending 1. Prior to the offending, the offender reported experiencing a relationship breakdown. He was regularly using methamphetamines and feeling stressed. He noted having difficulty with eating and sleeping during this time, advising that he could go two to three days without sleeping. 2. During the clinical interview, the offender provided different versions of his actions which minimised the criminality of his actions for example, calling the victim a taxi, attempting to heal his wounds. 3. The offender also attributed his actions to feelings of injustice and feeling a sense of purpose to help the co-offender and others. Remorse 1. Ms Lattas noted that the offender Steele, when asked about how he felt about the offending, stated as follows: "I know I have done the wrong thing" that he "feels really bad" and recognised the "impact for the man's life being changed forever". He advised that he was feeling a high level of remorse for his actions, and discussed feeling sorry for the victim, "myself and my family", stating that he has ruined both his and the victim's lives. He also stated that he was "glad for the opportunity to change his life". Future plans 1. The offender advised that he has developed a six year plan for his life that involves starting a new business in fencing and studying business towards the end of his sentence. Upon his release, the offender indicated that he wishes to live with a friend in a caravan. 2. In the long-term, the offender advised that he wants to be more involved with his family and his daughter and financially contribute to them. 3. He also expressed a willingness to attend a detox program and engage in counselling with his previous psychologist, Mr Wiseman. Assessment by Ms Lattas 1. After conducting a psychological assessment, Ms Lattas was of the opinion that the offender meets the diagnostic criteria for: * Antisocial Personality Disorder – characterised by "a persistent pattern of disregard and violation of the rights of others, including deceitfulness, impulsivity, poor social conformity, criminality and a lack of remorse"; * Severe Stimulant Use Disorder (in early remission); * Severe Alcohol Use Disorder (in sustained remission); and * Severe Cannabis Use Disorder (in sustained remission) 1. Ms Lattas was of the opinion that the offender Steele's early exposure to violence and aggression during childhood have likely influenced his relying upon maladaptive coping strategies, including aggression and compulsive substance use to cope with difficult emotions. Ms Lattas observed, "the use of aggression as punishment and substances as a way of coping were somewhat normalised during Mr Steele's childhood through the physical abuse, exposure to domestic violence and alcoholism by his caregivers". 2. Ms Lattas was also of the opinion that a Severe Stimulant Use Disorder and Antisocial Personality Disorder were likely present at the time of the offending. Evidence of the offender - Steele 1. The offender Steele told the Court that he feels guilty, ashamed and remorseful for his conduct and if he could apologise he would. He attributed his offending to the ability not to think clearly because of the use of ice. He told the Court that notwithstanding his use of ice for the period of two years before his incarceration, he tried to maintain three jobs. 2. In relation to his future plans, he confirmed that he wants to start a small fencing business and he has funds available from family and friends. His desire is to employ people in that business who need work. He told the court he has experience in that industry and has also completed a Certificate II in Business Management through TAFE and a Certificate III in Frontline Management. 3. In cross examination the offender gave evidence that prior to commencing using ice 2 years before being incarcerated, he had not used any substances since he was about 30 years old. Submissions on behalf of the Crown - Steele 1. The Crown relied upon written submissions supplemented by further brief oral submissions. 2. The Crown reminded the court that in relation to the offender Steele self-induced intoxication cannot be taken into account in mitigation. 3. In relation to whether the offender Steele mental health issues are causally connected to the offending, the Crown submitted that such a causal connection is not supported by the report of Ms Lattas. Specifically, Ms Lattas does not express a link between the offender Steele's mental conditions and the offending and, if at all, there is only a limited link. Submissions on behalf of the offender - Steele 1. Mr Healy of Counsel relied upon written submissions supplemented by oral submissions. 2. In relation to the offender's mental health issues outlined in the report of Ms Lattas, it was submitted that to a degree the offender Steele's moral culpability and his suitability as a vehicle for general deterrence are reduced by his significantly impaired capacity for rational thought at the time of committing the offences. Further, it was submitted that his mental health difficulties will make his time in custody more onerous. 3. It was accepted that the offender Steele's prospects of rehabilitation would have to be guarded given his criminal history. However, it was submitted that he may have reasonable prospects of rehabilitation given his willingness to undertake intervention, his remorse, his strong work history and future plans, and the absence of any offences whilst in custody. Relevance of mental health - Steele 1. Having regard to the evidence of Ms Lattas, I am satisfied that the offender Steele was suffering from mental health issues at the time of the offending that have continued whilst he is in custody. Whilst I am not satisfied that as a consequence of his mental health issues his capacity for rational thought was significantly impaired, I am satisfied that his mental health at the time does remain relevant to the overall sentence. 2. I am satisfied that his time in custody will be more onerous because of his ongoing issues. Accordingly, I propose to moderate the otherwise appropriate sentence. Prospects of rehabilitation - Steele 1. At this stage, I cannot find that the offender Steele has good prospects of rehabilitation given his criminal history includes a number of offences of violence. It is positive that whilst in custody the offender has considered his future plans which include establishing a business and being a productive member of the community. The Court is hopeful that upon release from custody the offender Steele is able to remain drug-free so that he can pursue those plans. Special circumstances - Steele 1. It was submitted on behalf of the offender Steele that the Court could be satisfied that there are special circumstances warranting a variation in the statutory ratio of the non-parole period to the parole period having regard to his ongoing medical condition and his need for a longer period on supervision to undertake counselling and treatment. 2. Having regard to the offender's current medical condition, I am satisfied that custody will be more onerous. I am also satisfied that he will need a longer period on parole to address both his mental health issues and long-standing substance use issues. In those circumstances, I am satisfied that special circumstances are established and I propose to vary the statutory ratio pursuant to s 44(2B), Crimes (Sentencing Procedure) Act. Totality – both offenders 1. In circumstances where each offender is being dealt with for two offences, I am required to consider the question of totality. The relevant sentencing principle is to consider whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not there should be some accumulation (see Cahyadi v R (2007) 168 A Crim R 41). 2. I intend to impose an aggregate sentence in respect of each offender. Had I imposed separate sentences, in circumstances where each offence includes separate and distinct criminality, I would have partially accumulated the sentences imposed. Parity 1. Where offenders are being dealt with for the same offence then they should expect to receive the same sentence if all relevant sentencing factors are equal. Any difference between the sentences imposed upon offenders being dealt with for the same offence should be justifiable: see Lowe v R (1984) 154 CLR 606. 2. In relation to each offence there is some differentiation between the role of each offender. 3. In relation to the offence of recklessly cause grievous bodily harm in company, the offender Steele played a greater role than the offender Smolinski in circumstances where he had the weapon and inflicted the injury, making him more culpable for this offence. 4. In relation to the offence of specially aggravated kidnapping, as I have previously indicated, I regard each offender as equally culpable. 5. Subjectively, there are a number of matters that differentiate the offenders. Whilst each offender has mental health issues, the offender Smolinski's mental health issues are of a greater severity and complexity and I have found they are causally connected to the offending. 6. Whilst the offender Smolinski was on conditional liberty at the time, he has a much less extensive criminal history than the offender Steele. The offender Steele's criminal history includes previous matters of violence for which he has served a custodial sentence. 7. Ultimately, I am satisfied that the differences in subjective circumstances will result in an aggregate sentence imposed upon the offender Smolinski, being of a shorter duration than that imposed upon the offender Steele. Determination 1. In determining the appropriate sentences I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act. 2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence pursuant to s 5(1), Crimes (Sentencing Procedure) Act. 3. I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties, each offender's subjective circumstances and the prescribed standard non-parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act. 4. As I indicated, I propose to impose aggregate sentences pursuant to s 53A(1), Crimes (Sentencing Procedure) Act. Pursuant to s 53A(2), the indicative terms are as follows: 5. In relation to the offender Smolinski, the indicative terms are: * Sequence 3 (Recklessly cause grievous bodily harm in company) - Starting term of three years and six months discounted by 25 per cent for the plea of guilty leaving a total term of two years and seven months with a non-parole period of one year and seven months. * Sequence 6 (Aggravated detain with intent to commit serious indictable offence occasioning actual bodily harm) - Starting term four years and six months discounted by 25 per cent for the plea of guilty, leaving a total term of three years and four months. 1. In relation to the offender Steele, the indicative terms are as follows: * Sequence 3 (Recklessly cause grievous bodily harm in company) - Starting term of four years and six months – 25% for the plea of guilty leaving a total term of three years and four months with a non-parole period of two years. * Sequence 6 (Aggravated detain with intent to commit serious indictable offence occasioning actual bodily harm) - Starting term of five years and six months discounted by 25 per cent for the plea of guilty, leaving a total term of four years and one month. 1. Mr Smolinski, in relation to each offence you are convicted. 2. You are sentenced to a total aggregate sentence of five years imprisonment to date from 15 May 2020 and expire on 14 May 2025 with a non-parole period of three years to date from 15 May 2020 and expiring on 14 May 2023. 3. You will be first eligible for parole on 14 May 2023. 4. Mr Steele, in relation to each offence you are convicted. 5. You are sentenced to a total aggregate sentence of six years imprisonment to date from 1 July 2019 and expiring on 30 June 2025 with a non-parole period of three years and seven months to date from 1 July 2019 and expiring on 31 January 2023. 6. You will be first eligible for parole on 31 January 2023. ********** 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: 28 October 2020