District Court New South Wales Medium Neutral Citation: R v Shane Gregory BLACKWELL [2012] NSWDC 179 Decision date: 13 February 2012 Before: Cogswell SC DCJ Decision: For the offence of recklessly causing grievous bodily harm, a sentence of 4 years and 4 months. Non-parole period of 2 years and 8 months. Catchwords: CRIMINAL LAW - Particular offences - offences against the person - grievous bodily harm - hotel glassing - victim's eye surgically removed - impact on victim. Sentence - standard non-parole period not imposed - special circumstances - very good prospects of rehabilitation - unlikely to re-offend - plea of guilty - relevant factors - spontaneous unpremeditated crime - prior criminality - very few previous convictions but both for disorderly conduct - response to charges - plea of guilty - discount of 13 per cent - expressed remorse and contrition in witness box - history of depression but inappropriate to allow significant discount - sentencing procedure - sentencing statistics, schedules - sentence range in JIRS relatively low. Legislation Cited: Crimes Act 1900, s 35(2) Crimes (Sentencing Procedure) Act 1999, 21A(2)(c) Cases Cited: Butters v R [2010] NSWCCA 1 R v Blackwell [2011] NSWDC 171 Category: Sentence Parties: Regina (Crown) Shane Gregory BLACKWELL (Offender) Representation: Counsel: L L Lungo (Crown) P A Dunn QC (Offender) Solicitors: Director of Public Prosecutions (Crown) OBH Law (Offender) File Number(s): DC 2008/10926 SENTENCE 1Mr Blackwell I am going to sentence you now. You probably know - because you have been sentenced before - that what I do is talk about your case for about 15 or 20 minutes. I usually underestimate that time. At the end I pronounce the sentence but you already know what the sentence is, so that I am giving my reasons. 2I am sentencing a young man who is not yet 30 who got himself into a drunken brawl in a hotel in the early hours of one morning and punched another man. At the time the young man I am sentencing had a glass in his hand. The result of the punch was that the other man's eye was so seriously lacerated that it had to be surgically removed. 3The young man I am sentencing is named Shane Gregory Blackwell. He has pleaded guilty to the crime that he committed which is recklessly causing grievous bodily harm. That is made a crime by s 35(2) of the Crimes Act 1900 and Parliament has fixed a maximum sentence of 10 years imprisonment to that crime. Not only that, Parliament regards the crime as so serious that it has fixed a standard non-parole period of 4 years imprisonment to the crime. 4It is important when a judge is sentencing a person to set out briefly what happened in the case. I did that when, after a trial without a jury, I found Mr Blackwell not guilty of the more serious crime of maliciously inflicting grievous bodily harm with intent. That decision I delivered on 8 November 2011 and it is reported at R v Blackwell [2011] NSWDC 171. 5Very briefly, what happened is that the victim Daniel Ward and his colleagues had finished work and were farewelling a workmate. (I am taking this summary from my earlier judgment.) It was Friday evening 12 October 2007. They were all police officers. Some of them kicked on to Scruffy Murphy's a hotel on the corner of Goulburn and George Streets in Sydney. It was by then late and getting on for well after midnight. 6The offender Shane Blackwell was also at Scruffy Murphy's. He was alone and drunk. There was a dance floor and Daniel Ward and his female colleagues were dancing. Shane Blackwell started to make a real nuisance of himself. He persisted in trying to dance with one or two of the female police officers, even touching them inappropriately. He was told in clear terms that his presence was unwelcome. 7Shane Blackwell was confronted by Daniel Ward and a couple of his colleagues. Mr Blackwell's response was to hit Daniel Ward in the face. At the time Mr Blackwell had a glass in his hand. The blow severely injured Daniel Ward - so badly, as I said, that one of his eyes had to be surgically removed. 8Mr Blackwell was immediately arrested and charged with the crime of maliciously inflicting grievous bodily harm with intent. 9After a trial without a jury I acquitted him of that crime. Mr Blackwell had indicated earlier the fact that he was prepared to plead guilty to the crime I am now sentencing him for. 10In fact there had been an earlier trial where Mr Blackwell was charged with the more serious offence. He was found guilty by a jury of that more serious offence and her Honour Judge Hock sentenced Mr Blackwell to 9 years imprisonment with a non-parole period of 6 years. Mr Blackwell's appeal was successful and the new trial was before me. As a result of the sentence of Judge Hock, Mr Blackwell spent nearly 2½ years in prison. That means that in due course when I sentence Mr Blackwell I will backdate the sentence by the amount of time that he has spent in custody. By my calculations the sentence will date from 3 August 2009. That takes into account the agreed period of 2 years, 5 months and 28 days up until 3 February 2012 when I heard submissions on Mr Blackwell's sentence and at that stage bail was not applied and refused. He has continued to be bail refused until today. 11In this case a victim impact statement was provided by Daniel Ward. Needless to say the loss of an eye for anyone, including a serving police officer, will have a traumatic and long-term effect. Mr Ward says that he will never forget the night that the crime was committed. He has undergone surgery and will require surgery in the future. His face is numb and there is still swelling where the glass fragments entered his face. His tear duct in his left eye was so severely damaged that it could not be repaired. His left eye is now either constantly wet or very dry. The left eyelid still droops and he expects it will be like that for the rest of his life. Certain avenues which were available to him for advancement within the police force are no longer available. He can no longer pursue being an operational officer in the riot squad and tactical operations. He can no longer drive a police car on urgent or emergency duties. As he says, he in no longer "able to fulfil my duties as a New South Wales police officer to my full potential as I could" before this happened. 12He has also suffered what he describes as "extensive psychological damage". He sees the effects of this crime every time he looks in a mirror. He needs to explain to strangers whom he meets his appearance or what happened. His confidence is affected, both in social groups and in speaking with women. He is on edge when he is out at licensed premises enjoying a drink. He feels a lack of confidence at work because of his impression that his workmates might be wondering whether he is up to various tasks or not. He had to sell his motorcycle which he enjoyed riding. He can no longer play football or most sports that involve a ball. He has difficulty catching. He has found himself, as he described, "psychologically as low as I could ever go". 13He summarised the impact which it has had on him personally by saying that his "life has been destroyed, I have lost not only the sight of one eye and suffered permanent disfigurement of my face, but also my career opportunities, and social confidence." That is, I repeat, a description by the victim of this crime of his perception of how the crime as affected him. It is obviously not only objectively a very serious injury for anyone to sustain but, so far as the personal impact which it has had on that person is concerned, it is very significant. 14It is also important for a judge to refer to matters which are personal to an offender when sentencing someone. It is obvious that it is important for a sentence to take into account not only how serious a particular crime is but also details about the person who committed the crime. 15Mr Blackwell has no criminal offences in New South Wales. In Tasmania, where he comes from, he has a couple of offences for disorderly conduct which were committed some 10 or more years ago and dealt with in the Magistrates' court in that State. There is a matter in Queensland but there was no conviction recorded and I do not take that into account and a number of matters in Western Australia, which are described as 'spent convictions' so that I do not take them into account either. It means that I am sentencing a young man who has had very few, in fact only a couple, of previous convictions but significantly - but without too much significance - both of those convictions were for disorderly conduct. 16In this case also there is a very helpful presentence report prepared about Mr Blackwell by the New South Wales Probation and Parole Service. The report gives a good deal of background and its summarising paragraph is as follows - "Presenting as a quiet and cooperative period [sic], Mr Blackwell appears to have had the benefit of a caring and stable upbringing, raised by parents who remain emotionally supportive of him. Although he is currently a resident of Tasmania, he has mainly worked interstate or overseas as a commercial diver, with inquiries indicating he has a strong work ethic and is highly skilled and respected in the work place. At the age of 23, Mr Blackwell was involved in a motorcycle crash which took the life of a close friend. That event appears to have resulted in his having some mental health issues, which may still need to be addressed. Although Mr Blackwell acknowledged that on the night of the offence he had consumed a significant amount of alcohol, those interviewed regarded that behaviour as being 'out of character'. Mr Blackwell, whilst accepting culpability, commented similarly. The continued emotional support of his family, as well as that of his girlfriend, is a positive element in his life." The report recommended that he should continue to engage with a psychologist whom he is seeing in Launceston. 17Mr P A Dunn QC, who appeared for Mr Blackwell in the trial and in the sentence proceedings, tendered as exhibit S1 a large bundle of material which was relied upon by him in his submissions on sentence. It included material expressing opinions from psychiatrists and psychologists. The experienced forensic psychiatrist, Dr Olav Nielssen, diagnosed in a report dated 1 February 2012 an alcohol abuse disorder and a depressive illness. Dr Nielssen was of the opinion that both of those were in remission. The alcohol abuse disorder diagnosis was made, as Dr Nielssen said, "on the basis of the history of a pattern of very hazardous drinking, especially around the time of this offence." Dr Nielssen thought that other evidence suggests "that the episode of severe depression that followed the accident and death of this friend was associated with the change in the pattern of Mr Blackwell's drinking in a way that suggests he was drinking in response to symptoms of his psychiatric disorder at that time." 18A psychologist who provided a report as well on Mr Blackwell, Tony Oleck, also diagnosed depression which was related to the accident involving the death of his friend. That had occurred in 2005. Mr Tony Oleck expressed the view that Mr Blackwell's "willingness to engage in therapy and to seek help for himself, indications that he was starting to make gains in therapy, his shock and feeling appalled at the possibility of committing such a crime, as well as his empathy for the victim are good indicators of a reduced risk of committing such a crime in the future." 19A document from the Australian Navy, in which Mr Blackwell served for some years earlier this century, indicated that he had presented with depression on 9 November 2005, which is consistent with the history of being in the bike accident with his friend earlier that year. 20Mr Blackwell has been seeing, as I said, a clinical psychologist in Launceston. That is a Mr Gary Bakker who provided a report dated 31 January 2012. With Mr Blackwell he has been working on problems which Mr Bakker described as an adjustment disorder with mixed anxiety and depressed mood and the remmed [sic] symptoms of a post traumatic stress disorder which Mr Bakker said was diagnosed after the bike accident in 2005. Mr Bakker thought that Mr Blackwell's remorse appeared to be genuine. 21His GP in Scottsdale, in Tasmania, a Dr McGinity confirmed that he had been attending a psychologist and noted that he himself, Dr McGinity, has been overseeing Mr Blackwell's rehabilitation. 22There are a number of references, including from Mr Blackwell's mother and other people. They include the parents of the young friend who was killed in the bicycle accident in 2005. They described how he was affected by that accident and describe his strong work ethic. He obviously comes from a strong and supportive family background and community. 23I have been provided, as well, with material including some statistics from the database kept by the Judicial Commission of New South Wales and some authorities, including Butters v R [2010] NSWCCA 1. The statistics indicate that a person pleading guilty to this offence with prior convictions of a different type would be sent to gaol - at least 81 per cent were sent to gaol. Of the 17 cases that received gaol penalties 65 per cent of those received an overall sentence of 3 years or less. Seventy-five per cent of those received a non-parole period of 2 years or less. 24I was assisted by the case of Butters which was an appeal by an offender to the Court of Criminal Appeal against a conviction for the same crime. In that case too the offender had been very drunk and had hit a person with a glass in his hand and the consequence of the impact was that the victim's eye had to be surgically removed. The sentencing judge, after taking into account a discount of 25 per cent for a plea of guilty, had imposed a sentence of 4½ years with a non-parole period of 3 years. Fullerton J - with whom McClellan CJ at CL and McCallum J agreed - found that that sentence was not manifestly excessive in the circumstances. The learned sentencing judge had found that the offence lay somewhere above the mid range of objective seriousness and that finding was affected by a finding made by his Honour that the offence in that case involved the actual use of a weapon. As Fullerton J pointed out, the provision of the Crimes (Sentencing Procedure) Act 1999 which provides that an offence is aggravated where it involves the actual use of a weapon - namely s 21A(2)(c) - has been interpreted "as requiring knowledge on the part of the offender using the glass that he had a glass when he intentionally struck the victim". (See [25] of her Honour's judgment.) 25I myself do not make the same direct finding. I am not satisfied beyond reasonable doubt for the reasons given in my judgment in the trial that Mr Blackwell knew that he had a glass in his hand when he was punching the victim. Also it was not specifically agitated in the submissions. 26I have been assisted by submissions made by Mr Dunn QC and by Mr L L Lungo the Crown Prosecutor who appeared in the trial and in the sentence proceedings. I have taken into account Mr Blackwell's personal background and circumstances which I have referred to but which are also set out in the written submissions which I marked for identification 1 which were made available by Mr Dunn. I accept that there has been a plea of guilty in this case. Mr Dunn QC argued the discount that one allows for a plea of guilty should be in the order of 20 per cent or more. Mr Lungo, on the other hand, argued that the plea could have been offered much earlier and that the discount should be more in the order of 10 per cent. I have determined that an appropriate discount is one of 13 per cent for Mr Blackwell's plea of guilty. 27The offence was obviously not planned or organised. It was a spontaneous gesture by a drunken man at an hotel. I am a little reluctant to find specifically that Mr Blackwell is a person of good character. I think that follows from the two convictions for disorderly conduct. He is obviously a highly regarded young man and has a lot of potential. He works very hard. I do accept, however, that he has no significant criminal history. 28His prospects of rehabilitation, I accept, are good, if not very good. I think he is unlikely to re-offend. I make those two findings because of the evidence of a psychological and psychiatric nature, as well as the presentence report. He expressed remorse and contrition in the witness box when he gave evidence in the trial. And it is clear from the psychiatric and psychological material that that is so. 29Mr Dunn argued that there are special circumstances for adjusting the normal relationship between a non-parole period and a full sentence, which is normally 75 per cent. He said that the steps towards rehabilitation which will be needed on release, as well as the fact that Mr Blackwell's family are interstate so that he is not easily able to be visited are factors to take into account. Mr Lungo does not dispute that submission and in due course I will reduce the normal ratio of 75 per cent. 30Mr Dunn QC argued that I could reduce the sentence somewhat because of the fact that Mr Blackwell had a mental health condition at the time, namely the depression and perhaps post traumatic stress disorder. He drew my attention to the authorities which indicate that a sentence should take into account that mental health condition in various ways. I do not place very much weight on that evidence. At least on that submission, I agree that a condition has been diagnosed but it is also apparent that Mr Blackwell was medicating himself, so to speak, by alcohol in dealing with that condition. I do not regard it as appropriate to allow a significant discount - rather to make a significant allowance - for a mental health condition where a person has had it drawn to his attention and has elected to deal with it by drinking and then commits a very serious crime. I will make some allowance but it is quite different from a condition such as schizophrenia or some other form of psychosis which has been diagnosed and under which an offender is suffering when the offender commits the offence. The authorities clearly indicate that such a distinctive case is not one that carries a lot of weight so far as general deterrence is concerned. On the other hand a person who decides to drink a lot of alcohol and then to behave in the way that Mr Blackwell has in a public hotel is something that should be deterred. 31I do not propose to impose the standard non-parole period. The main reason for that is the plea of guilty but also his likelihood of not re-offending and his good prospects of rehabilitation. 32I referred earlier to the statistics produced by the Judicial Commission. I frankly would regard the sentence range which is indicated by those statistics as being relatively low for this kind of crime, or I should say for a crime such as the one that Mr Blackwell committed. The maximum penalty is 10 years imprisonment for this crime and I regard this as a serious example of this sort of crime, where the grievous bodily harm is grave and has had obviously a significant impact on the victim and his life. Without the features such as Mr Blackwell's remorse and his prospects for rehabilitation and the unlikelihood of him offending again and the fact that he has very few prior convictions, I would have thought that a sentence of 6 years imprisonment would be appropriate. But after those considerations I would regard a sentence as 5 years as being the appropriate one to impose in this case. I will reduce that figure by 13 per cent to reflect Mr Blackwell's plea of guilty. 33Accordingly the sentence which I propose to impose will be 52 months, that is 4 years and 4 months. I propose to reduce the non-parole period, as I said. Seventy-five per cent of 4 years and 4 months would produce a sentence of 3 years and 3 months. I propose to apply a ratio of 66 per cent. That is about 2/3, which happens to be the same ratio which her Honour Judge Hock applied in the first sentence. A ratio of 66 per cent produces a non-parole period of 2 years and 8 months which is the non-parole period which I propose to impose. HIS HONOUR: I am going to sentence you now Mr Blackwell. 34I set a non-parole period of 2 years and 8 months which commenced on 3 August 2009 and will expire on 2 April 2012. The balance of the term is 1 year and 8 months. It will commence on 3 April 2012 and expire on 2 December 2013. Your overall sentence is 4 years and 4 months commencing 3 August 2009 expiring on 2 December 2013. The first date that it appears to me you will be eligible for release is 2 April 2012. HIS HONOUR: Have a seat Mr Blackwell. Now two questions Mr Outram and Mr Hunter. One is whether there are any factual or legal errors. Factual errors that could be dealt with simply by me referring to them or which may require the re-opening of proceedings under s 43 and the second thing of course is the mathematics. OUTRAM: No and no from my point of view. HIS HONOUR: Thanks Mr Outram. HUDSON: No your Honour there's no-- HIS HONOUR: All right. 35Mr Blackwell your sentence is 4 years and 4 months, as I have said. I backdated it to 3 August 2009, that takes into account the nearly 2½ years which you have already served. Your non-parole period is 2 years and 8 months, that will expire on 2 April 2012 in about a month and a half's time. And at that point you will be eligible for release. I cannot order your release because it is a sentence of more than 3 years. So it is up to the Parole Authority to decide whether you are released or not. Mr Hunter will advise you about making sure your paperwork is in for them. The balance of the term is 1 year and 8 months so that when you are released, which hopefully will be 2 April 2012, you are still under the sentence for a year and 8 months and you are on parole and, as you know, you have got to behave yourself. There will be conditions of that parole, which the Parole Authority will set and if you breach your parole you are back before me. OFFENDER: Yes your Honour. HIS HONOUR: Now Mr Hunter-- HUDSON: Hudson your Honour. HIS HONOUR: Hudson, I am sorry, Mr Hudson I would normally, and I am not sure about this case, send with an offender into custody any psychological or psychiatric material. HUDSON: Yes your Honour. HIS HONOUR: I am not sure whether it is needed in this case because your client had already been sentenced and he has only got a month and a half, subject to the Parole Authority, but I will if you would like me to, because he - I guess he has to be classified again. HUDSON: Yes your Honour I think I will for abundant caution seek that course, particularly the pre-sentence report which says the main supervision would be by virtue of New South Wales to Tasmania would be by virtue of the psychologist supervision within Tasmania. HIS HONOUR: Good, I will do that. I will make sure - I imagine they will have the presentence report but I will make a point of sending that and I will send the main psychiatric and psychological material. My associate sends it to the office in the Corrective Services which deals with classifying prisoners. Or alternatively about how long will he be here today, when does the truck go? CORRECTIVES OFFICER: About 4 o'clock. HIS HONOUR: Yes look we might be able to send it along with him, if that possible. Yes okay. All right Mr Blackwell, stay out of trouble and good luck. I will now adjourn. OFFENDER: Thank you. ********** 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: 09 October 2012