New South Wales District Court CITATION: R v Jeffrey John MASON [2009] NSWDC 364 HEARING DATE(S): 3 November 2009 JUDGMENT DATE: 3 November 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment. I set a non-parole period of two years and a head sentence of four years. CATCHWORDS: CRIMINAL LAW - Sentence - Aggravated break, enter and commit serious indictable offence - Assault occasioning actual bodily harm - Mental illness LEGISLATION CITED: Crimes Act 1900 PARTIES: The Crown Jeffrey John Mason FILE NUMBER(S): DC 2009/137742 COUNSEL: J. Booth - Offender SOLICITORS: Director of Public Prosecutions Legal Aid Commission - Offender SENTENCE 1 HIS HONOUR: Jeffrey John Mason appears for sentence today, having pleaded guilty in the Local Court to a most serious offence. That is an offence of aggravated break and enter and commit serious indictable offence. The serious indictable offence he committed was an assault occasioning actual bodily harm upon a person by the name of Mervyn Hamill. The circumstance of aggravation relied on by the Crown in the charge is that the offender maliciously inflicted actual bodily harm upon Mr Hamill, but the Crown could have relied on other aggravating features of Mr Mason's conduct, a matter I will return to when considering the appropriateness of the standard non-parole period for the present offence. 2 Mr Mason pleaded guilty in the Local Court, as I have mentioned, to this offence and so the sentence I will ultimately impose is reduced by 25 per cent to reflect the utilitarian value of his plea of guilty. 3 Mr Mason and Mr Hamill were neighbours. They got on reasonably well, sharing meals occasionally, but there was a problem with Mr Mason's mental state. He had been receiving treatment from a community based crisis team for some time because of problems he was having, in particular, paranoid schizophrenia. He was on antipsychotic medication for a while, which controlled his aggressive behaviour. However, Mr Mason told the crisis team lies. He told them that he was doing well and not experiencing fits of rage, when these in fact were not true. The crisis team, no doubt due to scarce resources, accepted what Mr Mason said, and so his regular injections stopped. This led to a further deterioration of his behaviour, culminating in the attack on Mr Hamill on 1 January this year. 4 Early that morning, Mr Hamill was in bed. The offender knocked on his door but was told to go away. A short time later he cut through the wire of the screen door, which allowed him access to the other door. He entered the flat, armed with a metal pole. Mr Hamill was asleep in bed. He was thus vulnerable to Mr Mason's attack. Mr Mason hit him a number of times to his head and body, causing serious injuries to him. Those injuries are graphically depicted in photographs tendered this morning. A significant wound is apparent to Mr Hamill's right wrist, right elbow and right upper arm. Other bruising, consistent with the use of a metal pole, can be seen on Mr Hamill's arm. There is also a deep wound to Mr Hamill's head. 5 After the offender left, he threw the pole away. Police were called a few hours later, by ambulance officers who had attended the scene. 6 Mr Hamill was taken to John Hunter Hospital. A doctor there noted the lacerations that I have mentioned. He identified tendons visible through the laceration, such was the severity of them. Although Dr Loton told Mr Hamill that these injuries required surgical repair, Mr Hamill refused treatment and checked himself out. 7 I record that Mr Hamill has since died from an unrelated illness. It is important to emphasise that Mr Hamill's unfortunate death has nothing to do with the attack upon him by Mr Mason. 8 After police had been called by the ambulance officers, they went to the offender's unit. He was asked about what occurred and he immediately admitted assaulting Mr Hamill with the metal pipe. He was asked, "Mate, can you tell me anything about the assault on Merv," to which the offender replied, "Wait a sec," and he then appeared to think for a while. "He has been niggling at me for the past few weeks. He has been trying to touch me up. I had enough and I was sick of it, so I hit him with the pole." 9 The offender showed police where the pole was. It was seized and the offender was placed in custody. 10 Later on, the offender spoke to Dr Westmore, a psychiatrist who interviewed him and who prepared a report for the benefit of the court. The offender expanded on why it was that he hit Mr Hamill repeatedly. It is clear that the prime factor causing the offender to act the way he did, that is, to viciously assault Mr Hamill, was the offender's mental illness. 11 The offender has had a lengthy history of mental illness. Dr Westmore was able to see hospital notes covering the period 2002 to 2007. He commented that he was unable to find hospital notes for 2008, but of course, that is explained by the fact that the offender was not being treated by the crisis team because he had told them lies which suggested that he did not need their assistance any more. 12 Dr Westmore concludes that the offender has a relapsing chronic mental illness. His illness is characterised by paranoid thoughts, auditory hallucinations, depression and self-harming behaviours. 13 Part of Mr Mason's problem is that, on top of his mental illness, he takes, or has in the past, taken illegal drugs. One of the matters which would improve Mr Mason's future and reduce the risk of him further offending involves the offender rehabilitating himself from his use of drugs. It is in the community's interest that Mr Mason get off the drugs that he has been on, because that will significantly reduce the risk of his mental illness relapsing such that he commits a further offence of violence such as this. 14 For that reason, I will find special circumstances in this case. There will be an extended period of eligibility for parole at the expense of the non-parole period. 15 The offender has a criminal history but, in the light of the offence that he committed on 1 January this year, it is notable that he has no convictions for violence in the past. In fact, his criminal history is relatively light, consisting merely of driving offences and one offence of break enter and steal for which he received initially a sentence of periodic detention for three months, although that was later cancelled. 16 There are a couple of other minor offences, for example, failing to produce evidence of entitlement to a concession card, but it is remarkable that, at thirty-four years of age, with a history of mental illness, the offender's criminal history has not involved in the past any other offences of violence. 17 This does tend to suggest that if the offender complies with his medication and treatment regime prescribed for him, it is likely that he will not commit further offences of violence in the future. 18 It is very important, therefore, that the criminal justice system do what it can to ensure the offender's compliance with treatment and medication prescribed for him. 19 It will not be me who is setting the conditions of Mr Mason's parole, it will be the Parole Board, but it is my strong recommendation to them that the conditions of his parole include matters designed to ensure Mr Mason's compliance with medication and treatment regimes. 20 I mentioned before that this offence has a standard non-parole period. That, of course, is not of direct application, given the plea of guilty, but it remains as a guidepost to the sentence I should impose upon the offender. 21 I find that this offence is significantly higher than the middle of the range for offences of this type. In making that finding, I take into account that the offence occurred in Mr Hamill's home. That may be a usual circumstance in which offences of this type occur, but it is not invariably the case. 22 I take also into account that the actual bodily harm was serious and significant. I take into account that in the list of circumstances of aggravation to be found in section 105A, this circumstance of aggravation relied on by the Crown is more serious than many others, and I take into account that other circumstances of aggravation were present as well. Mr Mason knew that Mr Hamill was home, and he was armed with a weapon. 23 For those matters, I make a finding that the objective gravity of the offence was significantly higher than the middle of the range. 24 On the other hand, there are factors tending to suggest a sentence which has a lower non-parole period than the standard be imposed. They relate primarily to the offender's mental state, his plea of guilty, and the need that I mentioned earlier to have a lengthier period of eligibility for parole. That would be the case in the absence of a finding of special circumstances. 25 The fact that the offender has the mental illness diagnosed by Dr Westmore and others suggests that it is inappropriate to impose upon the offender a sentence which has within it a substantial component of general deterrence. That is not to say, as Mr Booth concedes, that personal deterrence becomes unimportant. The offender must realise that if he is to break the law in the future in a serious way, then he will go to gaol. 26 He must also realise, as he now does, the connection between lying to the community crisis team and the offence which he committed on Mr Hamill. 27 Part of the sentence I will impose upon the offender is designed to bring home to him the need for him to do what is required of him, because if he does not, and if he commits a further crime, then he will go to gaol. 28 The offender has been in custody since 10 March 2009 and so it is appropriate that the sentence I impose upon him will commence on that date. 29 The offender is sentenced to imprisonment. I set a non-parole period of two years and a head sentence of four years to commence on 10 March 2009. This means that the offender's non-parole period will expire on 9 March 2011, on which day he is eligible to be released to parole. ********** 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.