R v David Morris MACINDOE [2006] NSWDC 146

New South Wales District Court

CITATION: R v David Morris MACINDOE [2006] NSWDC 146

HEARING DATE(S): 15/12/2006

JUDGMENT DATE: 15 December 2006

EX TEMPORE JUDGMENT DATE : 12/15/2006

JUDGMENT OF: Berman SC DCJ

DECISION: See Paragraphs [23] & [24]

CATCHWORDS: Criminal Law - Sentence - Mental Illness - Assault - Malicious Wounding - Form 1

LEGISLATION CITED: Crimes Act 1900 Mental Health Act 1990

CASES CITED: R v Thompson and Houlton (2000) NSWLR 383

PARTIES: Crown David Morris Macindoe

FILE NUMBER(S): 06/11/0844

SOLICITORS: NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: David Morris Macindoe appears for sentence today having committed a number of offences of great concern to the community. He committed those offences whilst under the influence of a mental illness from which he has suffered for sometime. That fact suggests that less weight should be given to general deterrence and that the offender will do his time in custody harder than he might otherwise. It also has implications for the offender's moral culpability, but it also works the other way, because the very factors which suggests that less weight should be given to general deterrence require that more weight be given to the protection of the community due to the danger that Mr Macindoe poses to its members.

2 On the evening of Friday 14 April 2006 the offender was in the vicinity of the Art Gallery of New South Wales. It is apparent that he spent a great deal of time in that location. A young woman, Nicole Livesley, and her boyfriend, Daniel Mussen, were sitting in that area when the offender walked up to them. They did not speak and they saw the offender going through rubbish bins and walked in a northerly direction. Without warning the offender came at Ms Livesley. He was armed with a bottle and swung it at Ms Livesley. The bottle broke, causing significant wounds to Ms Livesley's face and shoulder. After that the offender went towards Mr Mussen. He waved the broken bottle in close proximity to Mr Mussen, saying "Come on cunt come on." He then began to run away. Another person in the vicinity, Mr Lunetta, had heard the commotion and he ran towards Ms Livesley. As he did this the offender pointed the broken bottle at Mr Lunetta. He was screaming at Mr Lunetta as he did so. Ambulance officers were called and Ms Livesley was taken away for treatment. The offender was located a short time later and he was taken to the police station, where he participated in an interview with them.