District Court New South Wales Medium Neutral Citation: R v Assi-Leplaw [2022] NSWDC 108 Hearing dates: 11 April 2022 Date of orders: 11 April 2022 Decision date: 11 April 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 59 - 60 Catchwords: CRIME – sentencing – reckless wounding in company – mental and substance use disorders Legislation Cited: Crimes Act 1900 (NSW) s 35 Crimes Sentencing Procedure Act 1999 (NSW) ss 3A, 21A, 55 Drug Misuse and Trafficking Act 1985 (NSW) s 10 Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 McCullough v R (2009) 194 A Crim R 439 R v Tran [2005] NSWCCA 35 R v Watt (unrep, 2/4/97, NSWCCA) Texts Cited: Nil Category: Sentence Parties: Office of the Director of Public Prosecutions Mr J Assi-Leplaw (offender) Representation: Solicitors: Ms C Daly for the ODPP Mr H Salter for the offender File Number(s): 2020/00366484 Publication restriction: Nil SENTENCING REMARKS 1. The offender is before the Court for sentencing on a charge that on 25 December 2020 in Kirrawee he wounded Corey Watson in company and was reckless as to causing him actual bodily harm, contrary to s 35(3) of the Crimes Act 1900 (NSW) (the principal offence). 2. The offender also acknowledges guilt and asks the Court to take into account on the principal offence an offence on a Form 1, being that on 26 December 2020 in Kirrawee, he had in his possession a prohibited drug, namely 0.53grams of Psilocybin (hallucinogenic mushrooms), contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 3. The maximum penalty for the principal offence is 10 years imprisonment and/or $11,000 fine. The principal offence carries a statutory non-parole period of 4 years' imprisonment. The maximum penalty for the offence on the form 1 is 2 years' imprisonment and/or $2,200 fine. 4. It is common ground that by reason of the guilty plea, the offender is entitled to a 25% discount on sentence for the principal offence to reflect the utilitarian value of the plea. Circumstances of offending 1. The Crown and the offender reached agreement on the basic facts. The Statement of Agreed Facts was part of the Crown sentencing bundle. Multiple photographs depicting the offending conduct were observable. 2. At about 11:30pm, the offender, with two friends (Ms Irvine) and another (unknown) male entered the ground floor of an apartment complex in Kirrawee. It was suggested in that Ms Irvine was the owner, or at least had possession of a unit within the apartment. At about 11:43pm, Ms Irvine and the offender got into a verbal argument in the foyer and were still arguing as they exited the front door of the apartment complex. 3. At about 11:48pm, the victim started fighting the unknown male and the latter came to be on the ground with the victim standing over him. They were located on the inside of the same apartment complex. A very short time later, the offender and Ms Irvine opened the door to get back into the foyer in the complex, using the latter's key card. 4. Ms Irvine got in between the victim and the unknown male, but eventually the victim had the unknown male pinned with his back against the foyer entrance window. 5. Seeing this, the offender pulled out a knife from his pocket. He approached the victim from behind and struck him in the mid-section with the knife. Ms Irvine then interceded, pushing the offender away towards the other side of the lobby and a struggle ensued between her and the offender. 6. Shortly after the fight between the victim and the unknown male resumed, with the offender outside the building. 7. CCTV footage was played at the sentencing hearing (Ex B). Amongst other things, the footage emphasised the relatively brief involvement of the offender – most of the footage centred on the fight between the victim and the unknown male. More revealingly, it tended to show that the attack was isolated, in a physical sense. After the strike, there was no further physical contact between the offender and the victim, even if there was much finger-pointing and, apparently, screaming by the offender directed at the victim. 8. Police were called by a neighbour and arrived at about 1:46am. Paramedics also arrived. They observed that the victim was intoxicated. A puncture wound was observed on his upper right abdomen. The victim did not inform police or the paramedics about the stabbing. Although paramedics encouraged the victim to attend hospital, he initially refused. A few hours later, though, he attended Camden hospital, and was thereafter transferred to Liverpool Hospital. He was treated for a wound measuring 2 cm in his chest, with surrounding bruising. A small, displaced fracture of the 9th costal cartridge (at the front of the rib cage) was identified during surgery. The victim was discharged two days later. 9. On Boxing Day 2020, police executed a search warrant at the offender's residence in Kirrawee. Amongst other items that were located was a small resealable bag containing mushrooms. Subsequent forensic testing indicated that this was determined as containing 0.53g of psychedelic mushrooms (psilocybin). Explanation for offending 1. It is curious that in his legal representative's written submissions, reference was made to the offender acting with the motive of defending a friend. It is curious because in the sentencing assessment report prepared by the Wellington Community Corrections Officer, dated 14 January 2022, the offender said nothing to the effect that he conducted himself with the motive of helping to defend a friend. Nevertheless, in agreed fact number 3, reference was made to the offender entering into the apartment with "friends", and as I construe that fact, it appears that the other unknown male fell within that (plural) description. On the probabilities, therefore, I accept that the person who the victim physically attacked was a friend of the offender. I further accept that a substantial part of the reason for why the offender acted as he did was to try to defend his friend against further attack by the victim. 2. The corrections officer recorded the offender's belief that his behaviour was attributable to illicit substance abuse – methamphetamines - and associating with negative peers; albeit that he did not actually blame his offending on illicit substance abuse. He had been using methamphetamines (ice) and Xanax for 6 months. 3. The corrections officer recorded the offender's observation that he had received diagnoses of depression and anxiety and had been prescribed Prozac by his general practitioner. However, for reasons unexplained, the offender had not given this prescribed medication enough time to take effect and substituted illicit drugs as a means of coping with his mental health. 4. The corrections officer opined that the offender appeared to be easily influenced by his peers. This opinion was shared by the offender's psychologist. 5. In a letter of apology he supplied to the Court, the offender referred to the difficult months leading up to his offending. He alluded to an assault perpetrated upon him in September 2020 (a matter corroborated by medical records from the St George Hospital), in which he was stabbed. He also supplied an extensive 'life story', in different age brackets of his life, which support most of the history set out in the psychologist's report. 6. The offender relied upon the opinion of a psychologist, Mr Watson-Munro, that at the time of the offending, he suffered symptoms of a recurrent depressive disorder, anxiety disorder, aspects of post-traumatic disorder and a longstanding abuse disorder. 7. The offender submits, and I accept, that the principles identified in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], relating to the impact of mental disorders in connection with offending, are engaged. The Crown conceded that his longstanding substance use and mental health issues contributed to the offending. 8. For someone with the offender's diagnosis of post-traumatic stress, substantially stemming from his pre-adolescent exposure to violence as well as an assault perpetrated upon him only 3 months prior to the subject offending, there was a connection between a mental disorder and the offending which impeded his capacity to exercise rational judgment. In this way, in addition to a desire to help his friend, however misguidedly, his moral culpability was reduced and moderated the force which would otherwise be applicable to general and specific deterrence and the principle of retribution. Assessing the objective gravity of the offending 1. An important measure of the seriousness of the offending is the extent of the wounding. So too is the nature of the attack and the surrounding circumstances: McCullough v R (2009) 194 A Crim R 439 at [37]. Here, the injury was not insignificant. The victim was hospitalised for two days. The attack comprised a single strike, at a point in time when the victim was attacking another person (the offender's friend). 2. For his part, the offender noted that he became involved in a fight between other people. He used unreasonable and excessive force in attempting to protect his friend (the unknown male) and had no other substantial involvement in the fight, which continued after that involvement. I accept the main premise that the offender was perturbed about witnessing violence being inflicted by the victim upon his friend which conceivably did engage part of the defence of self-defence, even if the defence could not wholly be made out, thereby reduced his culpability. I accept the offender's submission that there was nothing to indicate any planning of the offending (a matter which, incidentally, differentiated this offending from an earlier offence for which the offender had been sentenced). 3. The Crown contends that the offending fell below the mid-range of objective seriousness for an offence of this kind. The offender submits that it fell towards the low end of the range. His legal representative referred in written submissions to some other cases which, it was argued, were more serious than the offending which occurred here. 4. I substantially agree with the offender's submission that, in terms of the objective gravity of the offending, and taking into account his substantially reduced moral culpability, arising from his mental circumstances and the circumstances of seeing his friend attacked, the conduct here fell towards the lower end of the range of seriousness. Aggravating factors 1. It would be a breach of the De Simoni principle to treat the circumstance of the wounding being in company as an aggravating feature when sentencing an offender for the subject offence: R v Tran [2005] NSWCCA 35 at [17]. 2. It is not an essential element of this offence that a weapon is used. Accordingly, the circumstance that a weapon was used aggravates the offending (s 21A(2)(c) of the Crimes Sentencing Procedure Act 1999 (NSW) ('CSP Act')). A submission was also advanced on the offender's behalf that he was only had a knife in his possession at the time to protect himself, in view of a recent assault being perpetrated upon him. This was similarly not the subject of evidence (including reference in the offender's letter of apology). That is not to say, however, that there was any suggestion that the offender had the knife in his possession with any preconceived notion of using it. Nevertheless, it has been said that any assault involving the use of a knife must be regarded as calling for a significant sentence, for the purposes of both specific and general deterrence: R v Watt (unrep, 2/4/97, NSWCCA). 3. The offending also occurred when the offender was on conditional liberty following a conviction for the offence of demanding property, in company, with menaces with intent to steal; which also aggravates the offending (s 21A(2)(j) of the CSP Act). The offence on the Form 1 1. This offence has some connection with the principal offence to the extent of providing independent corroboration of the offender's illicit drug taking proximate to the offending. The quantity of the drug was in the range of being indictable, albeit at the lower end of the range. Such drug taking was partly a function of a misconceived attempt to self-medicate through illicit substances, rather than through the prescribed medication, so in that rather narrow sense the force of specific deterrence and retribution is augmented to a limited degree. the offender's subjective case Age and background 1. The offender was 24 years of age at the date of the offending. He is relatively young though, of course, he was an adult at the date of the offending. 2. Some of the offender's background is covered in the report of Mr Watson-Munro, which I touched upon briefly earlier. It was also set out in considerable detail in a handwritten life story which the offender placed before the Court. 3. The offender was an only child of parents who separated when he was only 3 years of age. His mother re-partnered when he was 7 years of age. He told Mr Watson-Munro that his step-father was psychologically and physically abusive. Disturbingly, there was a reference to the step-father suggesting that the offender might take his own life. This impeded his ability to concentrate in the classroom. 4. He experienced some trouble from school from his mid-teens after bullying and suffered a mental breakdown. After leaving school, he commenced work as a labourer, before taking up employment with a real estate agency. His employment with the latter firm ceased when he lost his driver's licence. Thereafter his employment became erratic. 5. He has suffered a longstanding substance abuse disorder dating back to the age of 14 years. His primary drugs of addiction have been methylamphetamines and benzodiazepines. He also had a prior addiction to cocaine. Over time, Mr Watson-Munro opined, his drug use exacerbated his underlying psychological symptoms, impacting upon his cognition in relation to consequential thinking, judgment, and impulse control. 6. The offender has never married, but has been involved in one serious relationship, when he worked with the real estate agent, but that ceased when he lost his job there. 7. At the time of offending, the offender had been unemployed for 6 months and had been in receipt of Centrelink benefits. 8. He has sustained a knee injury which has precluded him from undertaking employment activities whilst in custody. Antecedents 1. Aside from two driving offences, the only serious earlier offence was, as previously indicated, the offence of demanding property (comprising cash, an iPhone, and a bank card) in company with menaces with an intent to steal, which occurred in May 2020. A perusal of the agreed facts in connection with that earlier offence suggested an orchestrated attack on a victim for which the offender was motivated by a perceived personal affront. 2. In all, the Crown submits that the record disentitles the offender from leniency. I agree with that submission. Character 1. The offender placed before the Court multiple character references from his mother, step-mother, father (who happens to be a correctional centre officer), a religious leader and family friend, who assisted the offender to get into the real estate employment. The references spoke not only of his contrition (about which I will shortly make further remarks) but other positive personal qualities. I have taken those into account, although in view of the earlier offence and the matter that occurred in custody, I am unable to accept that he is a person of good character in the sense relevant to this sentence. The fact is that the offender had a record for a serious recent offence and there was very little independent and objective evidentiary support for a finding of such things as positive community contributions. Remorse 1. The offender penned a letter of apology, which I have considered. 2. The sentencing assessment report recorded the offender's acceptance of responsibility for his actions and acknowledgement that his conduct was inappropriate. The corrections officer opined that the offender displayed a high level of insight about the impact of his offending. 3. The Crown concedes, and I so find, that the offender is remorseful for the offending. Prospects of rehabilitation 1. The corrections officer noted that since being in custody, the offender had commenced the Buprenorphine injection program. He also noted that the offender accepted that he did not handle stress well. The offender informed the corrections officer that he had sought psychological assistance for his mental health issues, whilst in custody, but he had not been assessed for treatment. 2. I have noted the corrections officer's views about the offender's insight into his offending. The corrections officer also recorded the offender's expressed willingness and ability to undertake intervention. 3. Nevertheless, the corrections officer assessed the offender as being at a Medium risk of reoffending according to the LSI-R scale. 4. The corrections officer noted that the offender shares a close and supportive relationship with his family. 5. I accept the Crown's balanced submission that the offender has in his favour a supervening period of abstinence, relative youth (indicative of a capacity to reform) and demonstrable insight which suggests good prospects of rehabilitation. But set against this is the assessment of a medium risk of reoffending, his drug use prior to the offending and mental health diagnoses. I consider that his prospects of rehabilitation, overall, are reasonable. Hardship in custody 1. The offender submitted, and I accept, that for someone with his mental health issues, the social distancing restrictions in the custodial setting imposed as a result of the Pandemic has resulted in greater hardship upon him in comparison to others. Further, he has not had the benefit of programs that may aid his mental health issues; nor, because of a knee injury, been able to find employment. Instinctive synthesis 1. I acknowledge the maximum penalty and statutory non-parole period for the principal offence as legislative guideposts to the imposition of penalty. 2. I also take into account the sentencing considerations in s 3A of the Crimes Sentencing Procedure Act. 3. I have already explained why, in my view, the undoubted need for a sentence to reflect general and specific deterrence and retribution is moderated in view of the offender's mental condition. Nevertheless, added weight should be given both to the protection of the community and even with his mental disability, there remains a need to hold the offender to account and reflect the harm perpetrated upon the victim. I take into account also a sentence which reflects his reasonable prospects of rehabilitation. 4. The offender's legal representative concedes that the s 5 threshold has been crossed. I consider that the concession was properly made given the serious nature of the offence and the aggravated nature of the offending. 5. The offender has spent a significant period (15 months and 16 days) in custody already. The offender went into custody from 27 December 2020 for the earlier offence and has since had bail refused on these matters. His legal representative submits, with reference to s 55 of the CSP Act, that the term of imprisonment for this offence should be wholly concurrent with the sentence for the earlier offence. 6. The Crown notes that the non-parole period for that earlier offence expired on 26 August 2021 (7 months and 17 days ago) and accepts that the sentence of imprisonment for the subject offence may have a degree of concurrency. Nevertheless, the Crown submits that the term of imprisonment for this offence must reflect the discrete nature of the offending. 7. I agree with the Crown's submission. Making this sentence wholly or substantially concurrent with the earlier sentence would not reflect the total criminality of the two offences which occurred on different dates, involved different victims and where there were very different elements of, and motives for, the offences. Making a small allowance for concurrency, I propose to backdate this sentence to 1 July 2021. 8. The Crown concedes, and I find, that special circumstances arise which justify a longer than usual period on parole, enabling the offender to obtain treatment for his substance use and mental health issues; to the community's benefit overall. Sentence 1. Mr Assi-Leplaw, please stand. 2. You are convicted of the offence of recklessly wounding Corey Watson in company and being reckless as to causing actual bodily harm. 3. Taking into account the discount on your guilty plea and the offence on the Form 1, as well as the other matters I have adverted to, I sentence you to a term of imprisonment of 1 year, 10 months and 14 days commencing on 1 July 2021 and expiring on 14 May 2023, with a non-parole period of 1 year, 1 month and 15 days expiring on 15 August 2022. ********** 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: 13 April 2022