District Court New South Wales Medium Neutral Citation: R v Tsingolas [2022] NSWDC 34 Hearing dates: 22 September 2021; 10 December 2021 Date of orders: 21 February 2022 Decision date: 21 February 2022 Jurisdiction: Criminal Before: Yehia SC DCJ Decision: The offender is convicted. Taking into account a 5% reduction in sentence to reflect the utilitarian value of the plea of guilty, and a period of 4 months' and 3 days' of pre-sentence custody, pursuant to s 7(1) of the Crimes Sentencing Procedure Act 1999 (NSW), the offender is sentenced to a term of imprisonment of 1 year, 7 months and 27 days, to be served by way of an Intensive Correction Order. That sentence will commence today, 21 February 2022. Catchwords: CRIME – reckless wounding SENTENCING – whether an Intensive Correction Order is available – the impact of childhood deprivation and disadvantage – reduction in moral culpability – the use of research into the impact of childhood deprivation and disadvantage, including childhood sexual abuse – the Bugmy Bar Book. Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 25A(2), 25D(2), 25C(2), 66 and 71 Crimes Act 1900 (NSW), s 35(4) Cases Cited: Blackman & Walters [2001] NSWCCA 121 Bugmy v The Queen [2013] 249 CLR 571 Fangaloka [2019] NSWCCA 173 Kentwell V R (No 2) [2015] NSWCCA Mandranis v R [2021] NSWCCA 97 Mourtada v R [2021] NSWCCA 211 Perkins v R [2018] NSWCCA 62 R v Gray [2018] NSWCCA 241 R v Pullen [2018] NSWCCA 264 R v Zamagias [2002] NSWCCA 17 The Queen v Osenkowski (1982) 30 SASR 212 Texts Cited: Cashmore, Judy and Rita Shackel, 'The Long-Term Effects of Child Sexual Abuse' (CFCA Paper No. 11, Australian Institute of Family Studies, January 2013) Public Defenders, 'Childhood Sexual Abuse' in The Bugmy Bar Book Project (November 2019) Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report , December 2017) Category: Principal judgment Parties: Anthony Tsingolas (Offender) Director of Public Prosecutions (Crown) Representation: Z Khan (Offender) M Reynolds (Crown) File Number(s): 2019/00316124 Judgment 1. The offender, Anthony Tsingolas, comes before the Court to be sentenced in respect of an offence of reckless wounding. The offence is contrary to section 35(4) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 7 years' imprisonment, with a standard non-parole period of 3 years' imprisonment. The Plea of Guilty 1. The offender was committed for trial on 6 May 2020. His trial was listed to commence on 30 November 2020 at Sydney District Court. On 8 December 2020, the trial was aborted and the jury discharged. The trial was listed to commence again on 6 September 2021. The offender was arraigned on a fresh indictment on 25 June 2021, and pleaded guilty following negotiations during the Sydney Super Call Over. 2. There is a dispute between the parties as to the appropriate discount for the plea of guilty. The Crown submits that the appropriate discount is one of 5%. The defence submits that the appropriate discount is 10%. The respective arguments are set out in the written submissions, supplemented by oral submissions during the sentencing proceedings. 3. Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act") applies to these proceedings. Section 25A(2) provides that: "A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division". 1. It is accepted that the index offence is not a "new count offence". The offence was included on the original indictment upon which the offender was first arraigned. Section 25D(2) provides: The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows- (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence; (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender- (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed if paragraph (a) or (b) does not apply. 1. In the present case, the matter proceeded to trial on 30 November 2020. The trial was aborted after the close of the Crown case and after the Crown had delivered its closing address. The offender's application to discharge the jury was not opposed by the Crown, and the jury was discharged. 2. The "first day of trial" is defined in s 25C(1) of the Act as meaning: "first day of the trial of an offender means the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated". 1. The Crown places some reliance upon the remarks made by the NSW Attorney General in the Second Reading Speech. In the Second Reading Speech, the New South Wales Attorney General made the following comments about section 25C and section 25D(2): "The offender is required to plead guilty, or give notice to the prosecutor offering to plead guilty, 14 days before the first day of trial to receive a 10% discount. This is to give the prosecution sufficient time to call off its preparation for trial and advise victims and witnesses that they need not appear. The first day of trial is defined in the proposed section 25C as the first day that the trial is listed….. This definition will apply even where the actual commencement of the trial is delayed for a short period-for example, where the trial is listed on Monday but does not proceed until the Wednesday because a judge was not available on the Monday when the trial was listed to commence. However, if the listing date is vacated -for example, where one of the parties is not ready to proceed and makes an application for vacation- and the trial is subsequently relisted to a later date, the new listing date will be the relevant date for the purpose of 'first day of trial'." 1. The applicable discount where a trial commences, the jury is discharged and a fresh trial date is fixed, is not specifically addressed in the statutory provisions, or the comments contained in the Second Reading Speech. However, the definition of 'first day of trial' is clear, namely, "the first day fixed for the trial of the offender or, if that date is vacated, the next day fixed for the trial that is not vacated." 2. In this case, the trial was not vacated, but commenced. The witnesses were called and gave evidence. The jury was discharged after the evidence was completed. In these circumstances, the prosecuting authorities had prepared the trial, called the complainant and witnesses to give evidence, and essentially conducted almost the entirety of the trial before the jury was discharged. I am satisfied in those circumstances that the appropriate discount to reflect the utilitarian value of the plea is 5%. 3. In addition to the quantified discount, I note that the plea of guilty was entered in the grip of the COVID-19 pandemic. Jury trials were suspended just a few short days after the 25 June 2021. The offender's acknowledgement of guilt, and confirmation of his plea of guilty, demonstrates his willingness to facilitate the administration of justice. Furthermore, his plea of guilty, although belated, has meant that that the witnesses did not have to go through the ordeal of giving evidence on a second occasion. 4. The Crown accepts the basis of the plea is that the offender believed that at the time of the incident, it was necessary to do what he did in order to defend himself, but that his actions were excessive in the circumstances and, therefore, not a reasonable response. The question of what is a reasonable response is quintessentially a jury question. The matter could have proceeded to re-trial. Instead, the offender pleaded guilty. 5. In addition, the offender has given sworn evidence of his remorse during the sentencing proceedings. I accept that the offender is genuinely remorseful for the harm occasioned to the victim. 6. The offender is also to be sentenced for the offence of 'owner not disclose identity of driver/passenger', a related offence which appears on the section 166 Certificate. The maximum penalty for that offence is 12 months' imprisonment and/or a fine of up to 50 penalty units. Facts 1. The circumstances giving rise to the offences are set out in the Statement of Agreed Facts. In addition to the Agreed Facts, the Crown has tendered CCTV footage depicting the incident. I have viewed that footage several times. I proceed to summarise the facts upon which I sentence the offender on the basis of the Statement of Agreed Facts, as supplemented by the CCTV footage. 2. The victim in this matter is Vittorio Dolfo. The Facts state that the offender and the victim were known to each other prior to the commission of the offence. During the course of the offender's evidence, he clarified that he knew the victim because they had met on one prior occasion. I accept that evidence. 3. Prior to the offence, the offender's son and the victim's son engaged in a fight. That fight resulted in animosity developing between the offender (and his family) and the victim (and his family). I accept the evidence of the offender that the offender's son and the victim's son had been friends. They fell out. The offender's son was assaulted and sustained some injury. It is unclear as to who was responsible for that assault. The offender agreed to a request that he attend the victim's brother's house to try to settle the dispute and make peace. This was the only occasion on which the offender and the victim had met prior to the incident in question. 4. On 2 October 2019, the victim drove into the street on which he lives and saw the offender in his car driving in the same street. The victim assumed that the offender was in his street with the intention of intimidating him. The victim decided to drive after the offender and followed him for several blocks until both cars drove into Anderson Street in Concord. 5. I pause to note at this point of my remarks, that I do not accept the proposition that the offender was in the victim's street with the intention of intimidating him. The victim assumed that this was the case, an assumption that underpinned the victim's actions, which immediately preceded the wounding. The offender has given evidence during the proceedings and was not shaken in cross-examination. He did not know where the victim resided and was not driving in the street with intention of coming across the victim, or intimidating him. The only prior occasion on which he had met the victim was at the victim's brother's house. 6. At about 5:15PM, the offender's vehicle is depicted on CCTV driving at speed along Anderson Road, Concord. At this time, the offender was being followed by the victim. Indeed, the victim later admitted to police that he was chasing the offender. 7. The offender conducted a U-turn at the end of the street, which was a cul-de-sac. Within seconds, the victim's vehicle pulled up in front of the offender's car. The CCTV footage depicts the manner in which the victim drove his vehicle, abruptly pulling up in front of the offender's car and cutting the offender off. The victim's manoeuvre clearly prevented the offender from driving out of the cul-de-sac. I do not accept the submission that the offender had a choice to drive out of the cul-de-sac. 8. The contention that it was open to the offender to reverse his vehicle out of the cul-de-sac ignores the circumstances as they must have existed at the time. The incident occurred very quickly and spontaneously. The victim's actions in abruptly cutting the offender's motor vehicle off, in the way set out above and depicted on the CCTV footage, could not have been anticipated. 9. The victim got out of his van and approached the driver's side of the offender's car as the offender was seated in the driver's seat. The CCTV footage depicts the manner in which the victim approached the offender's car. I am satisfied that he did so in a hurried and aggressive manner. 10. Indeed, during the interview with police, the victim said that he had chased the offender with the intention to "cave his head in". 11. As the offender got out of his car, he was holding a knife-like implement in his right hand. The victim then kicked the offender, who appeared to catch the victim's kick. At this point, the victim fell to the ground. As the victim was falling to the ground, the offender stabbed at the victim. 12. While the victim was on his hands and knees on the ground, the offender stabbed the victim at least twice to the left rib area. 13. After a few moments, the victim got up and jumped into his vehicle before driving off. The offender also jumped into his vehicle and drove off. 14. The victim drove himself to the Emergency Department of the Royal Prince Alfred Hospital and was treated for two stab wounds to his posterior chest, one of which resulted in blood and air flowing into the chest cavity, and two stab wounds to his left arm. The victim was discharged from hospital after 12 days. 15. In respect of the offence on the section 166 Certificate, the offender was arrested on 10 October 2019 and interviewed by police. He denied being involved in the altercation and refused to provide the details of the driver and passenger of his vehicle on the day in question, claiming he did not know who was driving. 16. It is accepted by the prosecution that the basis of the plea of guilty is that the offender believed that at the time of the incident, it was necessary to do what he did in order to defend himself, however, the offender's actions were excessive in the circumstances and, therefore, not a reasonable response. Put another way, the plea of guilty is entered on the basis of excessive self-defence. 17. The offender suffered some injury, but not during the commission of the offence itself. After the stabbing, the victim returned to his van and drove towards the offender, who, at that stage, was still standing towards the rear of his motor vehicle. The CCTV footage shows the offender rolling behind his car to get out of the way of the victim's vehicle, which was at that point being driven by the victim. It was in the course of avoiding being struck by the victim's car that the offender sustained a fracture to the fifth metacarpal bone and a comminute fracture to the base of his ring finger. Objective Seriousness 1. I proceed to assess the objective seriousness of this offence on the basis of what is contained in the Statement of Agreed Facts, supplemented by the CCTV footage, and the evidence given by the offender during the sentencing proceedings, in so far as I accept that evidence. 2. For the sake of clarity, I set out the following findings: 1. The offender was not driving in the victim's street with the intention of intimidating the victim; 2. The victim drove at speed towards the offender's car and pulled up abruptly in front of the offender's car, blocking the car off; 3. The victim got out of his motor vehicle and approached the offender in an aggressive manner at a time when the offender was still seated in the driver's seat. The victim's intention was to "cave his head in", a reference to the offender's head; 4. The offender took possession of an implement, described as a knife-like implement, which was an implement used by him in his employment. He opportunistically took possession of the implement as he exited his car. This is not a case where the offender was armed with a knife intending to use it in a physical altercation; 5. The offender stabbed the victim, causing four stab wounds at a time when the victim was not armed; 6. The offender believed that at the time of the incident, it was necessary to do what he did in order to defend himself, however, his response was excessive and not a reasonable response in the circumstances; 7. The incident took place over a short period of between 30 to 60 seconds; 8. Once the victim backed away, the offender did not pursue him, nor did he continue the attack; and 9. The injuries sustained by the victim were serious injuries that required hospitalisation for 12 days. 1. The offence is aggravated by virtue of the fact that the offender used a weapon to occasion the wounding. However, the extent to which this is an aggravating factor is moderated because I am satisfied that the weapon was an implement used in the course of the offender's employment, and was produced opportunistically in the face of an aggressive approach by the victim. 2. In determining the objective seriousness of the offence, I bear in mind that the extent and nature of the injuries; the degree of violence; and the nature and circumstances of the attack itself, are all relevant factors which may bear upon the seriousness of the conduct. There is no doubt that the injuries were serious. They were not, however, life-threatening, and did not result in permanent impairment. 3. I do not accept that there was any degree of planning involved. Instead, the offence was wholly spontaneous, precipitated by the aggressive approach by the victim and at a time, when it is accepted, that the offender believed that it was necessary to do what he did in order to defend himself. 4. I do not take into account provocation as a separate mitigating factor. Instead, I proceed upon the basis that the victim's actions gave rise to a genuine belief on the part of the offender, that it was necessary to do what he did to defend himself. 5. I am satisfied that the offence falls below the middle of the range of objective seriousness. Not "slightly' below the middle of the range, as contended for by the Crown. Equally, not at the lower end of the range, given the extent of the injuries sustained by the victim. 6. I am satisfied that the offender's moral culpability is reduced, given the causal connection between his mental health and the commission of the offence. I will address this issue more fully below after I have summarised the subjective material and, importantly, the expert evidence in respect of the nexus between the mental health issues and the offending conduct. Standard Non-Parole Period 1. The offence carries a standard non-parole period of three years' imprisonment. I remind myself that the standard non-parole period is not the starting point, or the endpoint, at arriving at an appropriate sentence. Instead, I am required to have regard to all of the relevant factors, including the two legislative guideposts, namely, the maximum penalty and the standard non-parole period. 2. I will be departing from the standard non-parole period (a substantial departure) because the offence falls below the middle of the range of objective seriousness, the offender has pleaded guilty (albeit a late plea) and, importantly, given the reduction in moral culpability as a result of the nexus between his mental health issues and the commission of the offence. Subjective Circumstances Family History and Domestic Violence 1. The offender's background is set out to varying degrees in the expert reports of Mr Macklin, Psychologist, Dr Brann, Psychiatrist, and Dr Knopman, Neuro- Psychologist. During the course of the sentence proceedings, I gave the Crown the opportunity to make an application to cross-examine one or more of these experts. That opportunity was not taken up. 2. The offender gave evidence that the history provided to the experts was both honest and accurate. I now turn to summarise that background. 3. The offender was born in Sydney and raised in the inner western suburbs. He is the eldest of four children and recalled experiencing a turbulent childhood. 4. The offender reported witnessing years of domestic violence between his parents. The offender described his father as a "very bad" and "intimidating" man. He recalled his father hiding weapons in their home and felt terrified of him. His father was very rarely at home and was often violent towards his mother when he was. 5. During the course of cross-examination, the offender gave evidence that the violence he witnessed between his parents involved "arguments". I am not entirely clear as to whether he intended to convey that the violence was limited to verbal arguments, or whether they included physical violence. 6. I proceed upon the basis that the domestic violence referred to more likely involved verbal intimidation, as opposed to physical violence. However, that does not necessarily detract from the relevance of a childhood in which the offender witnessed the intimidating conduct of his father in an environment where the "house-hold had to tiptoe around the father". 7. The offender maintains a strong relationship with his mother, Lynette. She currently resides in Wyong and, prior to the COVID-19 lockdown, the offender would visit her every fortnight. His mother gave birth to him when she was 16 years' of age and struggled to cope. The offender reported that she would "knock herself out with medications" as a result of his father's abuse. She would regularly overdose on her antidepressant medications and pass out on the couch, leaving the offender to look after himself and his younger siblings. 8. The offender admitted that he was an "uncontrollable" child and was kicked out of his home when he was 13 years' of age after he was expelled from school. He became transient and homeless during this time, and eventually ended up in juvenile detention. 9. The offender was married to his ex-wife for 20 years. He and his wife had three sons together, now aged 24, 21 and 15. Their relationship was marred by conflict and they eventually separated. The offender acknowledged that his marriage broke down as a result of his anger and childhood trauma. Despite this, the offender maintains a good relationship with each of his children. 10. The offender resides with his current partner, Roxanne. They have been together for the past four years and plan to marry. He described his partner as his "full-time carer". He relies on her to manage his appointments and organise his activities for daily living. His partner also has her own history of mental health problems and relies on the offender for support. They maintain a mutually supportive and positive relationship. Education and Employment 1. Mr Tsingolas attended multiple primary schools as his family often moved around. He reported that he "felt like he was moving schools every couple of weeks". He experienced long periods out of school as a result of being hospitalised with meningitis. 2. The offender reported suffering from dyslexia and experienced difficulty concentrating in class. He never learned to read and write properly. He experiences panic when he tries to read, and relies heavily on his current partner to assist him with his day-to-day work. 3. The offender was expelled from Homebush High School when he was halfway through Year 7. He received no further education other than what was offered to him in juvenile detention. 4. The offender has a sporadic work history as a result of his poor literacy. He has been employed in different trades, including car detailing; car sales; labouring; and demolition. He is presently unemployed and was placed on a Disability Support Pension in 2009. Intellectual Disability 1. The offender was assessed by Dr Alex Knopman, Neuropsychologist, on 20 August 2021. He underwent numerous cognitive testing during this assessment. Dr Knopman opines that the offender is a "man of estimated low average premorbid abilities". 2. His results revealed an overall intellectual ability score of 71, which is a borderline indicator of disability. Dr Knopman notes that the offender's scores were brought down by his extremely low verbal skills. In particular, the offender scored in the 'Extremely Low' range in terms of his basic reading skills – a grade that was equivalent to a person in Year 2, or below. His written and mathematical skills were also in the 'Extremely Low' range and at a grade equivalent to a person in Kindergarten. 3. Dr Knopman is not of the opinion that the offender meets the criteria for an intellectual disability. However, he does diagnose the offender with a Special Learning Disorder, with impairments in reading, written expression and mathematics – all of which he rates in the severe category. 4. Dr Knopman, in summarising the results of the neuropsychological assessment, stated: "in terms of executive functioning, verbal abstract reasoning is within the extremely low range. Non-verbal problem solving was in the average range and non-verbal logical thinking is within the low average range". Sexual and Physical Abuse at Daruk Boys Home 1. Between 1987 and 1979, the offender spent five months at Daruk Boys Home ('Daruk'). The offender disclosed enduring extensive sexual and physical abuse by multiple officers in an institutional setting. I note that public hearings conducted by the Royal Commission into Institutional Child Sexual Abuse revealed a widespread and systemic history of brutal sexual and physical abuse perpetrated against boys in Daruk. 2. The offender initially did not speak about, or disclose, the abuse he suffered to anyone. He stated that he felt ashamed and embarrassed about what had happened. He recently disclosed the abuse to his mother. He stated that his mother was distressed and suffered from a heart attack shortly after his disclosure. I understand that the offender has also commenced a compensation claim for the abuse he experienced at Daruk. 3. It is not necessary in this judgment to highlight the exact nature and detail of the sexual abuse suffered by the offender. Suffice to say that the sexual abuse was extensive and involved forced oral sex; sexual touching; masturbation; and anal penetration. 4. Dr Brann noted severe and sustained distress in the offender's recounting of the events. She stated that the offender : "was so emotionally overwhelmed and distressed and sobbing that it was difficult for him to speak at all…he had great difficulty in saying the actual words to describe anatomical parts, and at certain points in the interview agreed to nod or shake his head in answer, when he couldn't actually utter the words." 1. The offender also recalled being subject to military-style punishment. He spent long periods in solitary confinement and was repeatedly slapped, punched and hit over the head with objects. 2. The offender described living in an atmosphere of threat and survival. He was repeatedly told that he would never see his mother again if he disclosed the abuse. He stated that this always made him feel "really empty inside". Psychological Impact 1. The offender has experienced intense flashbacks of his time at Daruk. He relives the events that happened there and can recall every detail, including sights and smells. 2. He reported that he has always had difficulties sleeping, getting a total of four or five hours of broken sleep. He feels unmotivated and gets "edgy and anxious around people". He suffers from repeated nightmares. Most of the time, he feels like life is not worth living. He believes that if it was not for his children, he would have "killed himself". He reported feeling suicidal frequently. 3. The offender suffers from frequent panic attacks, at least once or twice a week. He experiences fear, palpitations, shortness of breath, tremor and chest tightness. He reported that his panic attacks began during his time at Daruk and intensified throughout his adult years. 4. Dr Brann ultimately diagnosed the offender with chronic Post Traumatic Stress Disorder ("PTDS"), with dissociative symptoms and panic attacks, Substance Use Disorder, and Major Recurrent Depressive Disorder. I note that the offender has previously received little to no treatment, or counselling, for his mental illnesses and trauma, and has experienced worsening symptoms in more recent years. 5. Dr Susan K. Brann, Consultant Psychiatrist, opines that the abuse suffered by the offender at Daruk caused, or contributed, significantly to the psychiatric conditions the offender developed throughout his lifetime. In particular, she states that it is more probable than not that the offender would have not developed chronic PTSD, behavioural problems, lack of employment, and lack of interpersonal relationship, but for the abuse he suffered at Daruk. Substance Abuse 1. The offender reported a history of habitual cannabis use. He used cannabis on a daily basis in order to manage his anxiety and to assist with sleeping. 2. Dr Brann opines that the offender's cannabis use was associated with the abuse he endured. She states that the offender uses the substance to dampen his PTSD symptoms. It is common for child sexual abuse survivors to frequently use alcohol and other drugs in order to cope with their trauma. 3. The offender did not report any other history of alcohol or substance abuse. Circumstances Surrounding the Offence 1. The offender reported having an extreme startle reaction to people and things. He stated that he often reacts and experiences intense feelings and flashbacks that he has to find a way to "let the poison out". In particular, the offender disclosed that he gets "afraid when blokes come near me… I retaliate". 2. When assessed by Mr John Machlin and Dr Brann, the offender displayed physical and emotional manifestations when describing the events leading to the offence before the Court. He reported that the victim chased him and approached him on foot, causing him to fear for his safety. He stated that he was "scared for my life" and tried to defend himself. When asked about the stabbing, he said that he "went overboard" and "wasn't thinking". Causal Link between Mental Illness and Offending Conduct 1. Both Mr Machlin and Dr Brann opine that the offender's PTSD was triggered under the threat, or perceived threat, of attack by the victim, exacerbating his fear reaction and aggressive response. 2. Dr Brann states that the offender's PTSD symptoms and associated levels of distress presented more fully and intensely to him in recent years, specifically in the context of circumstances where the offender stated that the victim was after him and his son. The confrontation between the offender and the victim presented as a trigger. 3. Dr Brann is a Consultant Psychiatrist who specialises in the assessment and treatment of adults who have developed psychiatric disorders on a background of sexual and/or physical and emotional abuse and neglect. Her particular area of clinical interest and experience has been the assessment and treatment of trauma-related disorders and associative disorders and, in particular, disorders which are primarily associated with severe trauma, often beginning in childhood. 4. Dr Brann reiterates her opinion that the offender's severe PTSD, together with his intellectual deficits, give rise to the likelihood of being triggered to enact a powerful attacking response in circumstances where he felt himself at risk of being overpowered, or abused. 5. Dr Brann confirms her opinion that there is a link between the PTSD and the offender's conduct on the day in question. The Bugmy Bar Book Project and Other Research 1. The Crown and the Defence have referred to various studies and research primarily relating to the potential impact of childhood sexual abuse. The Crown has referred to the Australian Bureau of Statistics, which estimates that 7.7% of Australian adults experience childhood sexual abuse before the age of 15. The Crown submits that notwithstanding this fact, most survivors/victims do not go on to engage and offending. 2. The relevance of this latter submission is not entirely clear, and was not developed in oral submissions. Individualised justice requires that I have regard to the background of the offender before me and any impact upon him resulting from a background of disadvantage, deprivation and/or trauma that may inform an assessment of his moral culpability. The fact that other victims of childhood sexual abuse do not commit crimes is not relevant. 3. The Crown also refers to the Australian Institute of Family Studies Research, accepting that negative mental health effects are associated with child sexual abuse, including PTSD symptoms. Victims of child sexual abuse are at a higher risk of subsequent criminal offending than those in the general population. 4. Mr Khan, on behalf of the offender, relies upon a number of studies and a body of research relating to the long-term effects of child sexual abuse. Research now clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual and interpersonal consequences. Childhood sexual abuse is a substantial risk factor for the development of, amongst other things, increased risk of drug and alcohol dependence, aggressive behaviour and social anxiety. [1] 5. Victims of child sexual abuse have also been found to be a greater risk of engaging in risky behaviours and of experiencing significant disruption to the development of emotional regulation, including a breakdown in the capacity to regulate internal states, including fear, anger and impulsivity. [2] 6. When a child is sexually abused, the effects can be devastating and ongoing. When the abuse occurs in an institution and the institutional response is inadequate, victims can experience additional adverse impacts. While each person's story is unique, for many victims, the abuse creates a complex constellation of mental health symptoms and associated negative outcomes that may change a person's life profoundly. [3] 7. This material should be seen as an extension of the subjective material provided in the individual case – here, the expert reports and the evidence of the offender. To an extent greater than ever before, sentencing Judges are now assisted by a body of research into the impact of various forms of childhood disadvantage, deprivation and trauma that may have an ongoing and profound impact upon the individual. 8. Sentencing Judges in the 21st Century have the benefit of that assistance. The material provided is expert research and study that allows for a better understanding of the potentially profound impact of an individual's childhood experiences upon, amongst other things, their capacity to mature, control impulse and self-regulate. The research complements the psychological, psychiatric and other evidence relied upon in the individual case, and can be of substantial assistance in explaining the offending conduct, assessing moral culpability and/or informing the appropriate penalty. 9. This approach has been recognised and utilised in a number of cases in the Court of Criminal Appeal. In Kentwell V R (No 2) [2015] NSWCCA, Bathurst CJ and McCallum J (as she then was) agreed with the remarks of Rothman J when re-sentencing the appellant. Those remarks included references to research conducted by Professor Baumeister, which made it clear that extreme social exclusion will likely result in antisocial behaviour and most likely result in criminal offending, a factor relevant to that case. 10. In Perkins v R [2018] NSWCCA 62, Fullerton J referred to the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, a matter "well researched and documented". Her Honour referred to recognition of these effects and the potential for lasting harm, finding expression and application in a range of academic and forensic disciplines: [99][100][101][102][103]. 11. In Bugmy v The Queen [2013] 249 CLR 571, French CJ, Hayne, Gummow, Kiefel, Bell and Keane JJ stated that: "[43] … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision." 1. I am required to determine whether the offender's adversities and disadvantage (primarily amongst them his childhood experience of sexual abuse) reduces his moral culpability. The material filed on his behalf is complemented by the expert opinions expressed in the body of research to which I have been referred. That research not only contextualises the material directly relevant to this offender's subjective case, but also assists me in having a broader understanding (based on expert material rather than my own inexpert understanding of human affairs) of the ongoing and profound impact of childhood sexual abuse. Moral Culpability 1. I am comfortably of the view that the offender's mental health issues are causally connected with the commission of the offence. Although the symptoms of PTSD were dormant for years, they were triggered by the conduct of the victim, genuinely perceived by the offender as aggressive and threatening. His PTSD, brought about by childhood sexual abuse, made him hypervigilant to danger. The fact that his symptoms remained dormant for years is not demonstrative of the intensity, or otherwise, of those symptoms. On the day in question, he was confronted by the victim's conduct, which resulted in a genuine belief that he had to act to protect himself. That sense of self-preservation was no doubt heightened, and perhaps even distorted, by virtue of his PTSD. 2. His capacity to extricate himself from the situation; to respond in a more reasonable manner; to reason maturely and calmly in an effort to de-escalate the situation was impaired by his mental health issues, which include PTSD. 3. It was in this state of mind that he reacted to the victim's approach. His response was, of course, disproportionate to the threat. However, his moral culpability is significantly reduced given the nexus between his PTSD and the offence. Extra Curial Punishment 1. The offender suffered two fractures to his hand following the stabbing in his attempt to move out of the way of the victim's vehicle, which was being driven towards him. The injuries were not sustained in the course of the offence itself, but shortly afterwards. 2. I am satisfied that this is extra curial punishment, although I am not persuaded that the weight to be afforded to it is anything more than modest. Prospects of Rehabilitation 1. The offender has a criminal record. It does not completely disentitle him to leniency. Many of the offences are driving related offences of driving whilst disqualified or unlicensed. The offender was sentenced to a term of full-time imprisonment some 10 years ago for supplying cannabis. He does not, however, have an extensive criminal record for offences of violence. 2. The author of the Sentencing Assessment Report states that the offender appeared to attribute blame to the victim for his actions, and that he lacked insight into the impact of his offending on the victim. I am not of the view that these representations reflect an absence of remorse on the part of the offender. 3. Given my findings and the basis of the plea of guilty, the victim was the instigator of the altercation. He chose to drive his vehicle in such a manner so as to cut off the path of the offender and then approach the offender with an intention to "cave his head in". That said, the victim's conduct did not warrant the disproportionate violence perpetrated by the offender. However, the lead up to the offence may explain what is attributed to the offender as a lack of insight. 4. I have had regard to the expert material in relation to the offender's cognitive functioning, which may have had an impact on the way he articulated his attitude toward the offending. In his sworn evidence before me, he did express remorse, which I accept was genuine. 5. The author of the Sentencing Assessment Report states that the offender has been subject to several supervised orders in the past, with the last supervised order being in 2016, where his response was considered satisfactory and his supervision was terminated early. 6. Importantly, the offender is attending counselling with Pamela Verrender, Psychologist. There is evidence that the offender has attended sessions of the SMART Recovery Program operated online through Odyssey House. 7. The offender is assessed as a medium to low risk of re-offending according to the Level of Service Inventory. I am satisfied that the offender has reasonable prospects of rehabilitation, which will be significantly enhanced if he continues in counselling and treatment with Ms Verrender, or delegate. Purposes of Sentencing 1. The offender's conduct must be denounced and punished. Notwithstanding the circumstances that gave rise to the offence, he stabbed the victim, causing four wounds. This is serious criminal conduct. General deterrence remains a relevant consideration, although the weight afforded to it is reduced in this case by reason of the offender's mental health issues. 2. Specific deterrence also remains relevant, although moderated by reason of the fact that the offender does not have an extensive history for violent offending, and has not re-offended since the commission of this offence in 2019. I also take into account that the purposes of sentencing include holding the offender to account and, importantly, acknowledging the harm to the victim. 3. One of the purposes of sentencing is the protection of the community. That purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation: see R v Zamagias [2002] NSWCCA 17 at [32] (per Howie J). 4. It is open to a sentencing Judge to attempt to fashion a sentence that is not crushing and which maximises the offender's prospects of rehabilitation: see R v Gray [2018] NSWCCA 241 at [119] (per Hamill J). 5. As King CJ said in The Queen v Osenkowski (1982) 30 SASR 212 at 212-213: "There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform." Section 5 Threshold 1. There is no question that the section 5 threshold is crossed, given the seriousness of the offence, the maximum penalty and the standard non-parole period. 2. In determining the length of the term of imprisonment, I have had regard to the objective seriousness of the offence and the reduction in moral culpability, given the nexus between the offenders PTSD and the commission of the offence. 3. I have also taken into account the offender's subjective case, which includes a disrupted childhood where the offender was exposed to his father's intimidating and aggressive conduct, disrupted schooling and learning difficulties. 4. Applying a discount of 5% to reflect utilitarian value of the plea of guilty, I am satisfied that a term of imprisonment of two years is appropriate. Imposition of an Intensive Correction Order 1. I turn to consider whether that term of imprisonment can be served by way of an Intensive Correction Order. The Crown submits that the only appropriate penalty is one of full-time imprisonment, given the seriousness of the offence and the injuries sustained by the victim, together with the weight to be afforded the various purposes of sentencing. 2. On behalf of the offender, I am urged to proceed by way of an Intensive Correction Order. In determining whether to do so, I must have regard to section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. Primacy must be given to the clear language of section 66(1) which, in terms, places community safety as the paramount consideration. The answer to the question as to which of the two modes of serving a sentence is more likely to address the offenders risk of re-offending, is relevant to the assessment of community safety: Mandranis v R [2021] NSWCCA 97, at [51]. 4. In the recent decision of Mourtada v R [2021] NSWCCA 211, Basten JA referred to his judgement in Fangaloka [2019] NSWCCA 173, where he said that unless a favourable opinion is reached in assessing whether an Intensive Correction Order would be more likely to address the risk of re-offending, an Intensive Correction Order should not be imposed. 5. His Honour clarified the position stating that a more nuanced approach was to be adopted in the weighing of the various considerations required to be taken into account under section 66, noting that the purpose of the section was to ensure that the Court does not assume that full-time detention is more likely to address the risk of re-offending than a community-based program of supervised activity. The sentencing Court is not required to favour an Intensive Correction Order over full-time custody, but it is required to have specific regard to community protection, and to bear in mind that short sentences are not necessarily effective as a means of deterring further offending. 6. Community safety is not achieved simply by incarcerating someone. Section 66 requires the Court to consider whether an Intensive Correction Order or full-time custodial sentence is more likely to address the risk of re-offending. The concept of community safety as it is used in the Act is, therefore, inextricably linked with considerations of rehabilitation: R v Pullen [2018] NSWCCA 264. 7. I have given a great deal of consideration to all of the purposes of sentencing as set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces, or assists, an offender to avoid offending in the future, the protection of the community is to that extent enhanced: R v Blackman & Walters [2001] NSWCCA 121. 8. I am satisfied in this case, that an Intensive Correction Order is an appropriate penalty. Although on its face a lenient sentence, given the nature of the wounding, the penalty reflects, in my view, a proportionate penalty given the particular circumstances giving rise to the offence in this case, the reduced moral culpability and the various purposes of sentencing. 9. The offender served a period of four months' and three days' of pre-sentence custody. An Intensive Correction Order commences on the day it is made in compliance with section 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Although I have determined that a term of imprisonment of two years is appropriate, I must have regard to the period of pre-sentence custody. It follows that the term of imprisonment to be served by way of Intensive Correction Order is one of 1 year, 7 months and 27 days. 10. Accordingly, I impose a term of imprisonment of 1 year, 7 months and 27 days, to commence today and to be served by way of an Intensive Correction Order. 11. The standard conditions that apply for the duration of the order are: 1. the offender is not to commit any further offences; 2. the offender is to appear before the court is called upon to do so; 3. the offender is to obey all reasonable directions of Community Corrections for as long as deemed necessary. 1. The additional conditions that apply for the duration of the order are: 1. the offender is to perform 150 hours of community service work; 2. the offender is to engage in psychological counselling and treatment with Ms Verrender, or delegate, for as long as deemed necessary; 3. the offender is to engage in anger management counselling and treatment as directed by Community Corrections. 1. In respect of the offence of 'owner not disclose identity of driver/passenger', the offender is convicted and fined $500. ********** Endnotes 1. Judy Cashmore and Rita Shackel, 'The Long-Term Effects of Child Sexual Abuse' (CFCA Paper No. 11, Australian Institute of Family Studies, January 2013) 23. 2. Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report , December 2017) vol 3, 25, as discussed in Public Defenders, 'Childhood Sexual Abuse' in The Bugmy Bar Book Project (November 2019). 3. Ibid. Amendments 25 February 2022 - coversheet - correct case name 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: 25 February 2022