R v Creighton [2020] NSWDC 794

District Court New South Wales

Medium Neutral Citation: R v Creighton [2020] NSWDC 794 Hearing dates: 18 September 2020 Date of orders: 18 September 2020 Decision date: 18 December 2020 Jurisdiction: Criminal Before: W Hunt DCJ Decision: The offender is sentenced to an aggregate term of 6 years imprisonment. There is to be a non-parole period of 3 years and 9 months. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Grievous bodily harm – Reckless wounding – Assault occasioning actual bodily harm – Resist officer in the execution of his duty – On conditional liberty at time of offending Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act Cases Cited: Bugmy v The Queen [2013] 249 CLR 571 40. Jinnette v R [2012] NSWCCA 217 Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684 R v Callaghan [2006] NSWCCA 58 R v Fernando (1992) 76 ACrimR 58 Category: Sentence Parties: The Crown James Andrew Creighton Representation: Counsel: A Bowens – The Crown S Bouveng – The offender Solicitors: Director of Public Prosecutions Legal Aid Commission File Number(s): 2019/00020182

Judgment 1. HIS HONOUR: These are ex tempore reasons for sentence delivered on the day that I considered evidence and read and heard the submissions of the parties in relation to James Creighton and his offending. 2. Mr Creighton is before the Court for four substantive offences. 3. The first is that he caused grievous bodily harm to Tamisha Miller with the intent to do so in breach of s 33 subs (1)(b) of the Crimes Act. That matter has a maximum penalty of 25 years and a standard non-parole period of seven years. 4. The second offence is an offence of recklessly wounding Lisa Creighton in breach of s 35 subs (4) of the Crimes Act which matter carries a maximum penalty of seven years and a standard non-parole period of three years. 5. The third offence is causing grievous bodily harm to Ricky Cloake with intent to do so, again in breach of s 33(1)(b) of the Crimes Act with a maximum penalty of 25 years and a standard non-parole period of five years. 6. The fourth and final offence is an offence of assault occasioning actual bodily harm on Joseph Brennan in breach of s 59 subs (1) of the Crimes Act which matter carries a maximum penalty of five years and no standard non-parole period has application. 7. I have signed a Form 1 having confirmed with Mr Creighton earlier today that he acknowledges his guilt in relation to an offence of resist officer in the execution of his duty which offence, on indictment, has a maximum penalty of five years and he confirmed that he wanted me to take that into account when I come to sentence him on count 3 and I will do so. 8. The position is that Mr Creighton was committed for trial to commence on 11 September 2020 from Tamworth Local Court in relation to charges that caught the criminality at counts 1 to 3 of the matters before me. He was re-arraigned on 10 August 2020 in the context of a super call-over presided over by me and pleaded guilty to counts 1, 2 and 3. A different charge that had been averred in relation to the victim of count 1 was marked no further proceedings. Mr Creighton had always acknowledged his guilt and pleaded guilty in the Local Court to count 4 being the assault occasioning actual bodily harm. 9. It is common ground between the parties that when I come to fix indicative sentences that the utilitarian benefit in relation to the pleas entered for counts 1, 2 and 3 ought result in a utilitarian discount of 10 per cent and an indicative sentence in relation to the assault occasioning actual bodily harm ought attract in the circumstances a utilitarian discount of 25 per cent. I agree with the submissions of the parties and will allow the offender those discounts in due course. 10. The facts are agreed between the parties and constitute five closely typed pages. I do not propose to slavishly read onto the record all of the agreed facts, but the following short summary flows from that document. 11. The offender was born on 21 March 1997 and was 21 years of age at the time. He is now 23. The four victims in the matter are; in relation to count 1, Tamisha Miller, who was at the relevant time the long-term romantic partner of the offender; count 2, Lisa Creighton, who is the offender's mother and as I understand it remains supportive of him notwithstanding this event; count 3, Ricky Cloake had the status of an uncle within the family although he was in fact the partner of the offender's second cousin; and count 4, Joseph Brennan was a friend of the offender's family. 12. The offender and Ms Miller had been in a relationship since early 2017. That relationship was characterised by the offender being extremely possessive. On 19 January 2019 the offender, the four people I have already mentioned and numerous other people, namely, family members of the offender, attended a get-together at his aunty's place in Tamworth. 13. The offender consumed an amount of alcohol and was very intoxicated. Ms Miller became upset because she believed that the offender was affected by methylamphetamine. Another person arrived at the premises that strengthened those suspicions. Ms Miller left the premises where the party was going on and went to return to the offender's grandparents' place where she had been living for some time. 14. The offender, driven by his friend Mr Johnson, found Ms Miller and wanted her to return. There was an argument about that happening which related both to Ms Miller's belief about him being drug affected and his belief about her cheating on him. She was then persuaded to return and in the course of the argument the offender said, "Shut the fuck up", and then said, relevantly, the words, "I'm going to fucking stab you and I'm going to fucking hurt myself." 15. The offender and Ms Miller got out of the vehicle in question and the offender pushed her. Various members of the family tried to intervene and the offender's uncle grabbed him in a bear hug and threw him away from Ms Miller. Various other things were said by family members and Ms Miller was crying. 16. The offender ran into the kitchen and obtained a large, sharp kitchen knife which had about a 25-centimetre blade from a knife block. He immediately ran back outside the front door and with his left hand pushed his uncle away from Ms Miller. He placed his left hand on her right shoulder and asserted, "She's cheating on me." 17. Twice the offender jabbed with the knife in his right hand in an upward motion toward Ms Miller's stomach, but did not make contact. He then stabbed the knife into her abdomen on one occasion. Family members of the offender then intervened and moved him away from Ms Miller who fell to the ground and was bleeding heavily. She moved inside the house and collapsed there. 18. The offender's mother, Lisa Creighton, was one of the persons intervening after the offender had stabbed Ms Miller. He reacted by slashing the knife out and it caused a large wound to Ms Creighton's left forearm. She began to bleed extensively from her wound. She then went inside the house and also collapsed. 19. The offender appeared to be in a rage, waving the knife around. He said, "I'm not going back to fucking gaol. Give me some keys." Mr Cloake, who was standing beside the offender's aunt, who was the hostess of the party, said to the offender, "You don't treat girls like that". The offender walked past somebody else who was present, grabbed hold of Mr Cloake's shirt with his left hand and with the knife in his right hand stabbed Mr Cloake several times to his abdomen and chest while Mr Cloake tried to move away from him down the side of the house. At no point did Mr Cloake try to fight back. He raised his arms to protect himself and suffered several stab wounds to his left arm in doing so. He began to bleed heavily from his injuries and walked to the rear yard where he collapsed. In due course various people called triple 0. 20. The offender continued to move around the front yard in a rage. He tried to enter the front door, but it had been locked to avoid that happening. His aunt walked into the rear yard and he followed her. He continued to demand keys and she said, "You're not getting nothing with that fucking thing in your hand." The offender then tossed the knife away and began kicking the rear screen door in an attempt to get inside. 21. Whilst the offender was at the back door and the occupants of the house were declining to open it on the basis of being in fear, Mr Brennan approached, unaware of what had been happening. He asked, "What's going on?" The offender turned from the rear screen door and with a closed fist punched Mr Brennan directly in the nose. He dropped immediately to the ground and remained there for about 20 seconds. He lost focus in his eyes and his nose bled. They are the facts that account for count 4. 22. The offender's aunt told the offender that the police were coming and he ran away. They arrived at the scene at about 10.35 pm and made various observations of the injuries to the various victims that I do not need to enumerate at the moment because I am going to go on to deal with their medical condition in due course. 23. In the early hours of the next day police, with the assistance of a police dog, tracked the offender hiding in a greenhouse structure at premises in Robert Street, Tamworth. He attempted to flee. He was told to stop, but he did not. The police dog was deployed to apprehend him and prevent his escape. The offender resisted violently his arrest by hitting and pushing both the relevant police officer and the police dog. 24. Eventually, further police subdued him and he was arrested. He participated in an electronically recorded interview in which he said he could not recall offending. At the conclusion of the interview he was charged and refused bail. 25. In relation to Ms Miller, she was treated at the emergency department of Tamworth Base Hospital for a clear incised wound to her right mid-abdomen. It was 6 centimetres in length. It was not actively bleeding at that time and she was stable clinically. A scan revealed a puncture site with a liver laceration and possible gastric wall injury. Ms Miller underwent urgent surgery under general anaesthesia. Her wound was explored and it had breached all layers of the abdominal wall and into the abdominal cavity. 26. There was significant blood in the abdominal cavity after it was opened surgically and there was a laceration of the left lobe of the liver which was actively bleeding. It was about 4 centimetres in maximum dimension and involved both the anterior and posterior surfaces of the liver. Bleeding was controlled surgically and she was returned to the intensive care unit. 27. Happily, her post-surgical recovery was uneventful and she was discharged on 23 January 2019, which was three days later, in a satisfactory condition. The medical opinion was that the injury was serious and life-threatening and had the potential to be fatal because of the involvement of a vital organ had she not received prompt medical attention. 28. In relation to count 2 the injuries to Ms Creighton were that she arrived at the emergency department of Tamworth Base Hospital with a 4‑centimetre left forearm laceration just below her elbow with neurovascular compromise. It was actively and profusely bleeding. She received a blood transfusion and IV fluids and the bleeding ultimately stopped. She was admitted overnight and then transferred to John Hunter Hospital for treatment in relation to compromised nerves and an arterial injury in her left arm. 29. There, there was surgical intervention which determined that the medial nerve had been completely lacerated and a different nerve had been partially lacerated. The ulna artery had been completely lacerated and there partial lacerations of the forearm muscles. In due course there was a repair and her wound was closed and sutured and she was discharged two days after the event on 22 January 2019 with a management plan. The injury was viewed to be serious with short and potentially long term disability anticipated. 30. The injuries to Ricky Cloake for the purposes of count 3 are that he arrived at the emergency department of Tamworth Base Hospital with multiple imminently life- and limb-threatening injuries and in a florid state of what is described as hypovolaemic shock as a result of a frank arterial bleed from his left brachial artery injury. He also had serious wounds to his torso. Apart from reporting pain, he was too unwell to give any further detail. He was placed into a medically induced coma whereby he was intubated and sedated in order to allow his assessment and treatment. 31. Ultimately, the injuries were two deep stab wounds to the left lower chest of 3 to 5 centimetres in length. Those wounds breached the epidermis, the dermis, the deep fascia and the space around the lung. A pneumothorax, in other words, a collapsed lung, was confirmed. That injury was potentially life-threatening. It required the emergency insertion of chest drains to drain that pneumothorax. 32. There were also two deep stab wounds to the left upper quadrant of the abdomen of 3 to 5 centimetres in length and once again those wounds breached the epidermis, the dermis and the abdominal cavity. Happily, surgical exploration determined there was no substantial injury to the intra-abdominal organs. 33. There were additionally two deep stab wounds of 5 to 7 centimetres in length to Mr Cloake's left arm involving significant blood loss due to the severance of the brachial artery in multiple sites. It was those injuries that had caused the hypovolaemic shock as a result of exsanguination, a life-threatening condition where prompt treatment with massive transfusion required. Altogether Mr Cloake received ten units of blood transfusion due to blood loss. He was transferred from emergency to the operating theatre for care by general and orthopaedic surgeons. 34. After exploration and ligation of certain blood vessels he was transferred to John Hunter Hospital for further management by specialist vascular surgeons. He underwent a number of surgeries in the following day in order to repair the brachial artery injuries and achieve satisfactory blood flow to his hand. That included grafts of both skin and artery. He remained admitted there until 30 January, in other words, more than a week when he was flown back to Tamworth Base Hospital and discharged. 35. As at 16 February 2019 he was still suffering from numbness to three of his fingers on his left hand. Further surgical procedures and a need for ongoing physiotherapy was noted. His injuries were opined to be serious life-threatening injuries if not dealt with promptly by medical services that likely would have resulted in death. The prognosis is considered to be intermediate with the anticipation of long term disability. 36. In terms of assessing the objective seriousness of the offending, it of course is necessary to take into account the level of injury. It is also necessary to take into account the intention, whether there was an actual intention to cause harm, grievous bodily harm as for counts 1 and 3 or recklessness as for count 2. 37. Additionally, both parties contend that there is nothing to suggest that the event was planned and indeed the submissions of both parties are accepted that, in particular, the offending against Ms Creighton was virtually opportunistic as the offender's reflexive reaction, as it were, to being man-handled away from his assaulting of Ms Miller. 38. The matters are made objectively more serious because the offender was in breach of conditional liberty, that is, parole. He had been on parole for 50 days at the time of these offences. It is relevant that the offence that he was on parole for, being armed robbery, was a distinct class of offending from this matter. 39. In relation to count 1 Mr Bouveng contended that the objective seriousness was below the middle of the mid-range of objective seriousness whereas Ms Bowens for the Crown contended it was above the mid-line of the mid-range but still within the mid-range. 40. I consider when one takes into account the fact that there had been a threat to stab and two motionings consistent with stabbing before the stabbing and that that was a domestic violence related matter that the objective seriousness taking into account the other aggravating circumstance that there was the use of a weapon means that the objective seriousness of that matter falls at the mid-range of objective seriousness. 41. In relation to Ms Creighton, because of the glancing nature of the blow and the relatively limited injuries and the fact that that was an offence where the offender was reckless as to wounding, taking into account the other aggravating circumstances I have identified, I accept Mr Bouveng's submission, not contested by the Crown, that the objective seriousness of that matter falls to the low end of objective seriousness of offending. 42. In relation to Mr Cloake, I take into account the multiple wounds, I take into account the very serious need for medical intervention. He was simply a bystander who was merely seeking to censure Mr Creighton for his misbehaviour in relation to his partner and his mother. That matter falls above the mid-range of objective seriousness for those reasons, but not into the high range of objective seriousness. 43. The assault occasioning actual bodily harm was a single punch, but it was a punch of sufficient force that it took Mr Brennan to the ground and had him in a confused state for some 20 seconds. That matter falls slightly below the mid-range of objective seriousness for the reason that there is only one aggravating circumstance in relation to that matter which is the breach of conditional liberty. 44. It is true that in terms of aggravating circumstances for the purposes of s 21A that the offender has a record of prior convictions, but it does not serve to aggravate the objective seriousness of the actual offending. I note that in terms of mitigation that the matter was unplanned, that there was a plea of guilty and there have been expressions of remorse that I will come to in due course. 45. In terms of matters that are personal to the offender, he has a record that denies him leniency. He commenced to be before the courts in 2011 and he has a variety of entries not limited to but including a number of aggravated break, enter and steal matters as a juvenile. It is worth noting that after a very short period he was attracting periods of control which feed into other findings that I will make in due course. 46. His first matters before the Court as an adult found him imprisoned. He was dealt with for a firearms matter and robbery in 2015 and was imprisoned. He was on parole for that armed robbery at the time of this offence. He also has a limited record but including a matter of burglary in Queensland. 47. Notwithstanding that the record denies him leniency, the number of times on which he has been imprisoned makes it clear that he is, if not institutionalised, at danger of institutionalisation. As well, in coming to attention so early as a juvenile confirms matters that he set out in a heartfelt, although unsworn, statement provided to the Court for the specific purpose of these proceedings. 48. I am prepared to accord greater weight to Mr Creighton's handwritten statement than would otherwise be the case. One of the reasons for that is that the Crown did not urge me to exercise the usual circumspection about unsworn material. I suspect one of the reasons for that approach being taken is because Mr Creighton's letter is an unvarnished assertion of things that have affected him in his life to date. 49. That is, although there is one part of the statement that is self-serving in terms of the effect of drugs and the effect on his offending, otherwise he gives a very frank account of difficulties. His principle drug of problem has always been cannabis. He describes, and I accept, that the difficulties of his early family life he found were resolved by smoking cannabis. He found it initially a panacea that blocked out some of the negative things that he felt about his upbringing and his circumstances. 50. It is relevant that he was introduced to cannabis-smoking within the context of the family home and the broader family unit. Obviously, at a time when he came to discover that smoking cannabis and then not smoking cannabis led to withdrawal symptoms he diagnoses his becoming entrenched in the criminal sub-culture as a result of trying to find a way to pay for his habit. 51. I am prepared to accept because of his candour in relation to those matters that when he expresses his remorse about these matters it is a sincere expression. Those expressions of remorse are fortified by his pleas of guilty. He is particularly remorseful because the effect of his actions has cost him an intimate relationship that he valued and any ongoing contact with his former partner's family. 52. Additionally, while he has not, as I understand it, lost those relationships, his relationship with his mother and his relative Ricky Cloake have necessarily become much more strained as a result of his offending and his status within the family ground as a result of there being a big family function at which these things happened underlines the difficulties that he has caused for himself. 53. The offending is all the more tragic because until he committed this offence he had been compliant, I accept, with his parole and the directions of his Community Corrections officer. Over and above that he and his partner had successfully acquired the prospect of full time accommodation and that was a first within the context of their relationship. 54. Shortly put, but for things that led to the commission of these horrific offences, for the first time in a long time the offender's life looked like it was on track. That sounds particularly in this sentencing exercise where the offender was only 21 years old at the time of this offending and is a relatively young man now at 23 years old, even though he has achieved his twenties, both responsible counsel before me put that it was proper that particular weight be given to rehabilitation because of the offender's youth. 55. There are some complications that arise in terms of when the sentences should commence. I have determined to impose an aggregate sentence so, of course, notional considerations of totality come about and I have had regard to principles of totality and matters articulated in Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684 and other cases in arriving at what I believe is the appropriate aggregate sentence. 56. It would seem that the offender's parole was revoked purely as a result of this matter. It is accepted by the parties, although there are variations within the lines of authority, that from R v Callaghan [2006] NSWCCA 58 there resides in me a discretion to determine when it is appropriate to commence a sentence to be imposed after parole has been revoked on the basis of the offences now for sentence. It is principal to avoid the appearance of double counting. I accept from material provided by the Crown that it would be less likely that a significant back-date would be achieved if the further offending was the same type of offending as the offending to which the parole related. 57. Here the matter is made slightly more complex because the offender was bail refused for this matter, but serving balance of parole from 20 January 2019 until 29 May 2019. Thereafter, although those two other conditions subsisted, the offender, between 29 May and 28 August 2019, served a short fixed-term sentence for the possession of a mobile phone in custody. As at 28 August 2019 he recommenced to be again in custody as a result of the continuing balance of parole and his bail refusal in relation to this matter. On on 13 September 2019 he commenced a non-parole period for a sentence imposed for escaping lawful custody which non-parole period expired on 12 June 2020. Fairly recently, on 12 September 2020, the head sentence for the escape matter expired and he now continues to be bail refused in relation to this matter and serving balance of parole. 58. Given I considered the breach of conditional liberty when assessing the objective seriousness of the offences as an aggravating circumstance for each of them, it is important that I do avoid even the appearance of double counting. Having served those other disparate periods for other offences and somewhat ameliorating a fall-back date, I have determined that it is appropriate to commence the sentence to be imposed for this matter on 20 April 2019, in other words, three months after he went into custody, to give some proper regard to the other periods served for other purposes. I have had regard to that fact and issues of totality as well when I come to structure the aggregate sentence. 59. It is common ground between the parties that the background, both evidenced by the record, evidenced in part by the nature of the gathering and the extended Aboriginal family involved, and particularly the matters that are set out in Mr Creighton's heartfelt written statement give rise to a proper finding of a dysfunctional family background consistent with the kind of backgrounds that were the subject of R v Fernando (1992) 76 ACrimR 58 but also more particularly Bugmy v The Queen [2013] 249 CLR 571 40. 60. The offender recites in his statement that he had taken MDMA, and large quantities of it, for the first time on that night. He ingested that material at the invitation of one of his uncles who was present. It is well understood that self-intoxication, whether by alcohol or by drugs, will not be a mitigating circumstance. That principle has been firmly established by courts - intermediate Courts of Appeal throughout the country. That said, it helps explain why a young man who has had his past problems with the law, but no significant matters of violence of this kind, could have behaved in the way that he did. 61. Absent some sworn evidence or some expert evidence, I am not in a position to make a finding that his affectation as it came about that night reduces his moral culpability. That said, I make a finding that he is remorseful. I am guarded about his prospects of rehabilitation, but if he takes up the support that he has in the community, the prospects of him making good his rehabilitation obviously will improve. I am unable to find that he is unlikely to reoffend. 62. When I identified the different ways in which I proposed to take into account the factors that Mr Bouveng contended were important in the sentencing exercise, Madam Crown did not cavil with the approach that I foreshadowed I was going to take. Both parties effectively joined in submissions that the relative youth of the offender made it important not to impose a crushing sentence at this stage of his life. 63. I have determined to find special circumstances on two bases; one, the need for an extended period of supervision in the community in relation to his ongoing problems with cannabis and his anger management issues and, second, to better protect the community by avoiding the risk of institutionalisation. 64. In Jinnette v R [2012] NSWCCA 217 the Court of Criminal Appeal found that it was not in error for a sentencing judge to find special circumstances on the basis of avoiding the risk of institutionalisation. Johnson J in that case thought it preferable to see special circumstances in a case like that promoting the protection of the public by meaning without institutionalisation that gaol would remain a disincentive to the offenders. 65. It is common ground between the parties that the section 5 threshold has been crossed and it is inevitable that Mr Creighton will be imprisoned full time and for a not insignificant period of time. 66. I have regard to all the purposes of sentencing as required by s 3A of the Crimes (Sentencing Procedure) Act. Obviously, this is a matter where general deterrence has some importance, as does specific deterrence. I will need to impose a sentence that will deter Mr Creighton from wanting to behave in the same way again. 67. I need to impose a sentence that adequately denounces his behaviour and punishes him, although in the circumstances of this case I have determined, without objection from the Crown, to take into account his youth and the Bugmy factors not as special circumstances, but to ameliorate the length of sentences that would otherwise be imposed in a different case for the same offending. 68. Convictions are recorded in relation to each of the matters. 69. In relation to counts 1, 2 and 3, because those are offences that carry a standard non-parole period, I am obliged when I announce an indicative sentence to also announce a non-parole period. 70. In relation to count 1, the indicative sentence is one of three years and two months with a non-parole period of 24 months. That is after the application of a 10 per cent utilitarian discount. The starting point sentence would have been three and a half years. 71. Each of the indicative sentences have some slight degree of rounding in either fashion. 72. In count 2, the starting point sentence but for discount would have been two years and after the application of a 10 per cent discount, that indicative sentences is one year and ten months with a non-parole period of 13 months. 73. The indicative sentence for count 3, taking into account the matter on the Form 1, the starting point sentence is four and a half years. With the application of a 10 per cent utilitarian discount, the indicative sentence is four years with a non-parole period of two years and nine months. 74. In relation to count 4, the starting point sentence would have been two years, but after the application of a 25 per cent utilitarian discount the indicative sentence is 18 months. 75. I am now going to announce the aggregate sentence which is the sentence you are going to serve, Mr Creighton. 76. The aggregate sentence is six years to date from 20 April 2019 and expiring on 19 April 2025. The non-parole period is three years and nine months which means the earliest date of release to parole is 19 January 2023. 77. I recommend that the State parole authority impose conditions requiring supervision, treatment of Mr Creighton's cannabis addiction and some assistance with anger management.