R v Quinnell [2014] NSWDC 156

District Court New South Wales

Medium Neutral Citation: R v Quinnell [2014] NSWDC 156 Hearing dates: 05/08/2014 Decision date: 07 August 2014 Jurisdiction: Criminal Before: S Norrish QC Decision: Count 7 Term of imprisonment 2 years 4 months. Count 2 Term of imprisonment 4 years 3 months with non-parole period of 2 years 6 months. Count 5 Term of imprisonment 6 years 4 months with non-parole period of 3 years 2 months. Catchwords: CRIMINAL - Wounding with intent to cause grievous bodily harm, assault occasioning actual bodily harm, standard non-parole period, matters on a Form 1, objective seriousness, intoxication, pleas of guilty, domestic violence. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: Muldrock v The Queen (2011) 244 CLR 120 Markarian v The Queen [2005] HCA 25 Mitchell and Gallagher v R [2007] NSW CCA 296 The Queen v Coleman (1990) 47 A Crim R 306) Mendes v The Queen [2012] NSWCCA 103 Stanford v R [2007] NSWCCA 73 R v Engert (1995) 84 A Crim R 67 Waters v The Queen [2007] NSWCCA 219 De La Rosa v R [2010] NSWCCA 194 Category: Sentence Parties: Director of Public Prosecutions Paul Bradley Quinnell Representation: Mr Pincott - Director of Public Prosecutions Ms Mendes - Offender File Number(s): 2012/250176

sentence 1HIS HONOUR: Bradley Paul Quinnell appears today for sentence in relation to three offences to which he pleaded guilty in the Wagga Wagga District Court on 28 April 2014. There are two offences of wounding Kristie Worth at Batlow on 11 August 2012 with intent to cause grievous bodily harm to her. Those two charges represent counts 2 and 5 of the indictment. Those pleas of guilty were accepted by the Crown in discharge as alternative charges to allegations of wounding the victim with intent to murder her. 2The third charge with which I am concerned is an offence committed on the same day at the same place of assaulting Kristie Worth occasioning to her actual bodily harm. The maximum penalties for the offences of wounding with intent to cause grievous bodily harm are 25 years imprisonment with a standard nonparole period of seven years imprisonment. The maximum penalty for the offence of assault occasioning actual bodily harm when on indictment is five years imprisonment. 3There is a matter on a Form 1. This matter is to be considered in relation to the principal offence of a wound with intent to cause grievous bodily harm in count 5. This is the second offence in time of that type. The matter on the Form 1 involves a charge of assault committed at the time of the more serious offences when another victim, other than Kristie Worth, was pushed against a wall. In the scheme of things it is a matter of minor importance save for one aspect, and that is the assault committed on that victim was in the course of that victim endeavouring to dissuade or prevent the offender from committing further offences against the primary victim, Ms Worth. 4When dealt with summarily the offence on the Form 1, as I understand it, carries a maximum penalty of one year imprisonment. When dealt with on indictment it carries a maximum penalty of two years imprisonment. The prisoner has been in custody since his arrest on 11 August 2012. The offence has been committed in the early hours of the morning. The pleas of guilty were entered after a committal for trial in relation to various charges and after the matter had been listed for trial. But the pleas of guilty and discharge of the original indictment proposed by the Crown followed upon negotiations that were well in hand before the trial date. 5This is not a case of pleas of guilty being entered at the door of the Court, so to speak. It is submitted in very careful written submissions prepared by learned counsel for the prisoner that all things considered that are set out in those written submissions and supplemented by oral submissions, the appropriate discount to recognise the utilitarian benefit of the pleas of guilty should be 15% upon the otherwise appropriate sentence for each offence. 6The learned Crown Prosecutor accepted that the discount as submitted was within the legitimate range of discretion available to the Court. Thus, having considered the matters raised by counsel for the prisoner, noting the position of the Crown, I have concluded that it is appropriate in this matter to accord the prisoner the discount in relation to each sentence otherwise appropriate as submitted by counsel. 7The facts of the matter are that the primary victim, Ms Worth, was the partner of the prisoner living in premises at the relevant time, occupied also by the prisoner's younger brother, who has provided evidence to the Court about material matters and a young woman who is the victim of the assault that appears on the Form 1. The prisoner and the victim, Ms Worth, had been in a relationship, as I understand it, for approximately five to six years before the events of this night. 8There is no victim impact statement, although the victim was in court and was present when the prisoner offered his apology to her. It goes without saying, as was noted in the submissions, that the victim at various points of the proceedings was distressed. But in the absence of any other information I could not draw an inference adverse to the prisoner that either the apology was rejected or the apology itself distressed the complainant. It may have done so, but, in any event, in the context of the matters that I need to consider so far as the prisoner's evidence is concerned, the willingness or otherwise of a victim to accept an apology is really a matter of little moment in sentencing proceedings as a number of authorities have made clear. 9Although I do not have a victim impact statement, it is clear that the conduct of the prisoner was obviously terrifying for the victim at the time of the relevant events and no doubt had a very profound impact upon her. I would have no doubt from the facts of this matter that the distress of that particular early morning caused by the conduct of the prisoner and the violence metered out to her would still cause the victim considerable distress and concern. 10The fact that there is no victim impact statement is a matter that is neutral in the proceedings and certainly no inferences adverse to the victim or favourable to the prisoner as far as the effect of his conduct is concerned could be drawn from the absence of such a document. The facts of the matter reflect upon events that are not only revealed in the statement of facts but come from the evidence of the prisoner and various histories he has given as well as other material tendered in the proceedings. 11I have a statement prepared for the proceedings by Dr Margaret Stark, who is the Director of the Clinical Forensic Medicine Unit of the New South Wales Police Force. She is a suitably qualified expert in interpreting matters relating to drug and alcohol ingestion, the effect upon individuals by the use of combinations of drugs and related matters. Her statement provides a great deal of information which is actually not in the facts relating to the investigation of this matter; the presentation of the prisoner at the time of his arrest and observations made of him by ambulance officers, police and others over an extended period of time following upon his arrest; his presentation during the interview; the history he has given; as well as her opinions as to matters arising from the history he has given. I will deal with the detail of that material when I, firstly, set out what I understand the facts to be based upon, of course, the statement of facts and some evidence about relevant matters given by the prisoner himself. 12On the afternoon of 10 August 2012 both the victim and the prisoner, apparently separately, travelled to a funeral at Tumut from Batlow where they both lived at the relevant period of time. It is clear on the evidence that the prisoner throughout the afternoon had consumed a quantity of alcohol. The victim was in company with another friend. By about 7 o'clock when the parties were about to leave Tumut to return to Batlow, the prisoner was affected by alcohol and the victim was angry at him having been intoxicated at the funeral. 13It turns out from the material available to the Court that the deceased, whose funeral the prisoner and victim attended, had died from an overdose of drugs including the ingestion of the commercially labelled drug, Xanax, which the prisoner himself consumed during the night of the 10th and the early morning of the 11th. 14The victim went back to the home she shared with the prisoner and the prisoner's brother (Shane) and the partner of Shane Quinnell, Maddie Callaway, the victim of the assault on the Form 1. The prisoner went out again with his brother and Ms Callaway and the victim eventually went to bed whilst they were out. The facts state that the prisoner and the other people, including, as I would understand it, his brother, continued to consume alcohol and other drugs were consumed including, a quantity of Xanax up until 2am, when the prisoner, his brother and Ms Callaway returned to the house they occupied. 15The facts state the prisoner was highly intoxicated at this particular time. He obviously had some recriminations or anger within him concerning the conduct of the victim. Whether it was paranoid or not, on his part he believed that she had hidden some money that he believed he had won gambling at the TAB agency the previous day, I assume at the hotel at Tumut. Where that occurred it does not really matter very much. 16The prisoner started to cook himself a meal and became increasingly agitated and had an argument with his brother. Eventually the prisoner walked into the bedroom, I take it he shared with the victim, who was asleep. He stood over her and asked, "Where the fuck is my money?" She woke up and observed that he had a pair of scissors in his hand. She turned on the bedside light and asked him what he was doing with the scissors and then without further ado the prisoner stabbed her to the righthand side of her face with the scissors. She could obviously immediately feel blood running from her face and tried to get up while the prisoner tried to push her back onto the bed. He then left the bedroom. 17There is a shortage of medical evidence in this case concerning the injuries of the victim, but I take the blow to the right cheek to be the 1.5 centimetre would on her right cheek for which she subsequently received one suture or stitch. The victim got up from the bed and walked out of the bedroom screaming and bleeding heavily. Ms Callaway came to her aid and the prisoner's younger brother tried to calm him down. During this period the prisoner accused Ms Callaway and Shane Quinnell of calling the police. I do not know what else he would have expected them to do whether sober or affected by alcohol. 18He smashed two mobile phones. He said about the victim, "Fuck the dog, don't worry about her, she's nothing but a dirty slut anyway." Then, without warning, he ran towards the victim, who was in the hallway of the house between the bedroom and the bathroom, this time armed with a second pair of scissors, which he held in one hand and kitchen knife which he held in the other. The victim heard the prisoner's brother yell out, "Run". Ms Callaway then stood in front of the prisoner and tried to reason with him as he tried to push past her. She was pushed against the wall and slumped to the ground. This constitutes the assault on the Form 1. 19By this time the victim was in the bathroom and had closed the door. She tried to hold the door knob to keep the prisoner entering but eventually the prisoner forced his way in with the door flying inward. The victim ended up lying on her back on the floor. He was brandishing the knife and scissors. She began pleading with him and pulled herself into a foetal position for protection. He approached her and raised his left hand above his shoulder in readiness for a downward strike. He then began repeatedly stabbing her to the face and neck while she screamed for him to stop. 20The victim was so scared that she closed her eyes and held her hands above her head in an attempt to protect her face from the stabs. She was repeatedly struck to her hand, neck and face in quick succession and for obvious reasons she feared for her life. In relation to these aspects of the facts I probably should have sought some clarification, but the facts do not say whether she was being struck with the scissors or the knife. It really does not matter a great deal because at the end of the day she had a five by three centimetre laceration to the back of her right hand, which is clearly a defence wound, but more than a simple cut, with complete transection of the extensor tendons of the right index and middle fingers. 21I am not informed one way or the other whether she suffers a permanent disability from that injury. She has a small wound in the nature of a defence wound, it would seem, between the right, middle and ring finger. She has a two centimetre wound in her mid forehead for which she received three stitches. She had a .5 centimetre wound on her left mid cheek for which she received two stitches. She had two wounds in her right lateral neck, one being 1.5 centimetres long, which required four sutures, and the other being one centimetre long, requiring three sutures. She had a one centimetre wound on her left lateral neck which required three sutures. 22As the stabbing ceased she managed to unbalance the prisoner and she wriggled out from underneath him. She ran straight through the lounge and out the front door with the prisoner in pursuit of her. By this time Ms Callaway and Shane Quinnell had run from the premises and were encouraging the victim to run. Obviously neither of them could quell the prisoner's anger or his momentum. The victim continued down the road in the direction of what is described as the Batlow Hotel. How far that is away I am not informed. She ran until she felt she was going to pass out. By this time the prisoner caught up to her and jumped on top of her. This was on the footpath outside the Batlow Hotel. Standing above her with her facing down he took hold of the by her hair and, using his body weight and arms, smashed her face into the concrete footpath. 23Her right cheek and forehead were the primary point of impact. He then lifted her head off the ground and, using his body weight and arms, again smashed her head into the footpath. By this time, his brother had alerted two other people about what was happening, Mitchell Cornby and another man, Michael Collins. They drove to the scene where the prisoner still had hold of the victim by her hair. They ran over to him and by pushing him, kicking him and prying his hands from her hair, they managed to move him away from her. Both the prisoner and the victim were covered in her blood and she was obviously in a very distressed state. These men carried her to the car and drove her to the Batlow Hospital emergency department and are to be commended for their intervention. 24Once at the hospital, Mr Collins passed her to medical staff. During this particular assault, the offender also bit the victim causing pain and bruising to her hand. The other injuries, which are described in the fact sheet, include bruising from a bite to the left hand, abrasions to the back and left shoulder, abrasions to her left upper arm and bruising to her right and left thighs. It is extraordinary that she did not suffer further serious injury, particularly to her face and head from the conduct of the prisoner at that time. 25The prisoner was taken into custody. The report of Dr Stark reflects upon his presentation in the period of time from the time he came to Tumut police station, which was 3.39am on 11 August. He was clearly intoxicated. He had cut himself before arrest with an unknown weapon and had injuries to his arms from selfinflicted injuries. He was very aggressive. The police believed he was under the influence of drugs and alcohol. He told police that he had taken "shit loads of Xanax", he was obviously intoxicated, he refused to answer questions that were asked of him, he called the police "cunts", and "dogs", and was described by an observer as "very irrational". 26He was placed under constant supervision to ensure he did not cause any further injuries to himself and made various allegations about the way he had been treated by the police. Ambulance officers came to treat him a short time later and he was still quite intoxicated throughout the early morning. By 8.58 he was still unsteady on his feet and not very coherent, with slurring speech. By 10.50 it was thought that he had sufficiently recovered from his intoxication to be spoken to, but he was not willing to assist police. 27At 10.55 am he told a police officer that he did not understand his rights under the relevant legislation that the custody manager is required to bring to his attention. He said, "No, my brain is fried by Xanax, I don't know a fucking thing." He did not appear to understand what he was being told. His speech remained slurred throughout the rest of the morning. He claimed that he did not understand what was being put to him. He told police that his body was sore, he thought his body was shutting down and he continually referred to the use of Xanax and the marks upon his body. They would have included, of course, what were selfinflicted injuries. 28The Director of the Clinical Forensic Medicine Unit had observed the recording of the interview, such as it was, that was conducted with him and made various observations about his recollection in that interview, in which he said he had no recollection of the incident or how he sustained his injuries, although he was primarily concerned about his injury to his arm. The expert comments upon the use of alcohol and the use of the medication alprazolam - which is sold under the trade name Xanax - describing it as a benzodiazepine drug used for the treatment of anxiety and panic disorders. These are drugs that act principally by potentiating inhibitory neurotransmitter activity in the brain. 29She made the observation that regular use of benzodiazepines and alcohol results in tolerance of the drugs, being metabolised more quickly and the duration and peak intensity of the desired effects reduce. She made various comments about the combination of intoxication with benzodiazepines and alcohol. She made the observations that benzodiazepine use may lead to paradoxical increase in hostility and aggression, ranging from talkativeness and excitement to aggression and antisocial acts. Rage reactions with violent behaviour are most likely in people with a history of aggressive behaviour or unstable emotional behaviour such as a history of anxiety related disorders. She expresses opinions about the half life of the medication, the way in which the medication may be snorted and the like. 30She formed the opinion that the prisoner was under the influence of alcohol and alprazolam on the night that the assault occurred. His intoxication could account for his amnesia, as both alcohol and drugs may cause amnesia and the effects of amnesia are compounded if the drugs are taken together. She made observations about the effect of snorting Xanax tablets, which increases the effect of those tablets. He was unfit to be interviewed due to the combination of drugs and alcohol, and possible sleep deprivation, and discomfort from his injuries - although she did say in her report she could not give an accurate level of the prisoner's intoxication. 31The prisoner who is 37 at this time, was 35 and a half years of age at the time of the commission of the offence. He has, up until the present time, developed a very formidable criminal history. A number of appearances in the Children's Court for acts of dishonesty, acts of violence and, at one point, possession of a shortened firearm. As he moved into adulthood and commenced his appearances in the Local Court, his behaviour giving rise to police intervention did not improve and he was, on a number of occasions, sentenced to terms of imprisonment. 32For example, in August 1996 he was convicted of stealing and sentenced to a minimum term of 18 months with an additional term of two years. Likewise, he received the same sentence for malicious damage and resisting arrest offences, as well as breaking and entering with intent to commit obviously a serious indictable offence on two occasions, and a charge of breaking entering and stealing. He was dealt with other stealing offences in a like manner. In 1999 he was convicted of common assault, as I understand the matter, in respect of three charges - the record is a bit ambiguous - and sentenced to fixed terms of one month and two months in relation to those offences. 33He appealed against the severity of those penalties and the District Court, in June 2000, converted the terms of imprisonment into Community Service Orders. In May 2002 he appeared at the Wagga Wagga District Court. He was convicted of common assault, for which he was sentenced to a term of six months imprisonment, and convicted of being armed with intent to commit an indictable offence, for which he was sentenced to three imprisonment with a nonparole period of six months. As I understood his evidence - and I do not have a transcript of that evidence, obviously, the matter was only heard two days ago - he suggested that the offence for which he received the threeyear imprisonment term was an offence in which he produced a knife to his mother. 34I must say in passing - and it is no criticism whatsoever of the very professional way the matter has been conducted by the parties - the time has long past where judges are not provided with the facts of matters where prisoners come to Court to be sentenced in relation to similar crimes for which they have previously been sentenced in the District Court or Supreme Court. In fact, I believe Judges are entitled to have the facts of all matters where people have previously appeared in Court to be sentenced, particularly sentenced to terms of imprisonment, given access to that information by digital retrieval. 35Be that as it may, the prisoner appeared at the Tumut Local Court on 27 May 2003 and sentenced to 12 months imprisonment with a ninemonth non-parole period for common assault. On the same date he was convicted of contravening an apprehended domestic violence order. In respect of three such charges he was sentenced to 12 months imprisonment with a non-parole period of nine months. He was also convicted on that occasion for 'intimidation' for which he was sentenced to 12 months with a ninemonth nonparole period and convicted of other offences. 36In October 2005, at the Tumut Local Court, he was convicted of three charges of common assault for which he was sentenced to 16 months imprisonment with a 12-month non-parole period, and intimidation for which he was sentenced to 16 months imprisonment with a 12-month non-parole period. He appealed to the District Court in relation to those orders and in respect of the sentences for the common assault matters the penalty of imprisonment was adjusted to nine-months imprisonment without a non-parole period in each case. 37The prisoner was again convicted of common assault on 10 September 2007 for which he was fined a modest amount. The matter was heard ex-parte. In January 2008 he was convicted of either possessing or attempting to possess a prescribed restricted substance, which I take to be prescription medicine, the details of which I am denied. He was sentenced to 16 months imprisonment with a non-parole period of 12 months. He was convicted of possessing equipment for administering prohibited drugs and fined, as well as possessing a prohibited drug for which he was fined. He was also convicted of possessing a prohibited weapon without a permit and sentenced to 16 months with a non-parole period of 12 months. On that date he was also convicted of resisting a police officer in the execution of his duty and two counts of common assault, for which he was sentenced to 12 months imprisonment with a non-parole period of nine months. There was another conviction for possessing drugs. 38The last relevant convictions, the last convictions before the current matters in 2012, were convictions recorded, as I understand it, on 22 November 2010 of destroying or damaging property, breaking and entering a dwelling house with intent to steal, assault occasioning actual bodily harm, and affray. For the first two charges he was sentenced to 18 months imprisonment, commencing on a date in May 2010, with a non-parole period of six months. For the last two offences of affray and assault occasioning actual bodily harm he was sentenced to 15 months imprisonment which was backdated to 20 February 2010 with another non-parole period of six months. 39As I understand those sentences, they were sentences upon which the first two orders were partially accumulative. The prisoner has convictions in Victoria, too, back in the mid-90s for which he was sentenced to terms of imprisonment that were suspended. 40It is in this context that I consider the evidence in the pre-sentence report which stands at some odds with the evidence given by the prisoner. The pre-sentence report of the Community Corrections Service presents what might be described as a negative view of the prisoner seen from the perspective of those that have had the responsibility over a period of time of supervising him in a range of ways. The report notes that supervision in the past has had varying degrees of success. 41Whilst he has successfully completed three parole orders in 2005, 2007, and 2009 the case management required him to address his alcohol and other drug abuse issues and maintain his mental health regime. However, the prisoner had failed to complete a community service order in 2000 and he had a parole order revoked in 2003. The most recent interaction of Community Corrections with him was as a result of the orders made at the Tumut Local Court in 2010. In respect of those matters, during the period of parole supervision a breach report was submitted to the State Parole Authority on two separate occasions in relation to drug use and the State Parole Authority issued warnings on both occasions. 42A further breach of parole was submitted and Mr Quinnell's parole order was revoked effectively on 15 September 2011 in relation to failing "to obey all reasonable directions of the officer, fail to reside at an address agreed on by the officer, and not to use prohibited drugs, obtain drugs unlawfully, or abuse drugs unlawfully obtained". He served the balance of parole without any further grant of parole. 43This information, of course, is relevant both in considering the utility of parole supervision and the issue of special circumstances which ultimately I have found in his favour for reasons I will explain in a moment. But it also underlines the fact which is self-evident from his own evidence, particularly in the cross-examination of the prisoner, that for quite a number of years before this incident the prisoner had well and truly been on notice of the impact upon him of the use of alcohol and the use of drugs, whether they be prescribed or prohibited drugs, and the aggression, reflected in his criminal history, arising from abuse of both alcohol and drugs of various types. 44The prisoner, in terms of his family circumstances, had what could be called a reasonable upbringing. There was no major dysfunction. His father, according to the prisoner's brother in his affidavit, drank alcohol occasionally but was not a heavy drinker. The prisoner was not exposed to significant or substantial domestic violence. The prisoner, the mother thought, had been diagnosed with Attention Deficit Hyperactivity Disorder and was prescribed medication. However, his mother thought it was, "too late to do any good". The prisoner himself has no recollection of taking medication for any such disorder and whether he was ever diagnosed with such a disorder appears to be a questionable matter. 45He said that he "gravitated towards older antisocial peers" and thus, "commenced his interactions with the judicial system at around this time", and thus developed the criminal history that is apparent from his appearances in the Children's Court. He does have the support of his mother, according to the Community Corrections Service, but he does not have a particularly good relationship with his father who rarely contacts him. He also has the support of his brother and he would wish to live with his brother on his release from custody. 46The brother, who had tried to help him on this particular morning to no avail, prepared as I mentioned earlier, an affidavit in support of the prisoner. He made the point in relation to the prisoner's presentation at the time of these assaults as being in a manner that the brother had not seen before and acting in a way that clearly reflected the extent of his intoxication. 47The prisoner had been in a relationship with another woman for seven years before he met his current partner and has two children. His relationship with his children has not been particularly productive, bearing in mind his exwife would not permit them to see him for many years. He tried to establish contact with his children but each time he started that process he wound up back in gaol as his criminal history makes clear. 48The victim of the indictable matters with which I am concerned has had no children to the prisoner and I was informed - and there was no dispute from the bar table - that the prisoner had previously been convicted of assaulting her, although again I do not have the details of any matters of substance in relation to that. The prisoner gave evidence before me that he works in casual labouring work and concreting and the like and he is keen to work, but the truth of the matter is, as far as the Community Corrections Service is concerned, that having underachieved at school and having left at Year 9 after a lot of antisocial behaviour leading to suspensions and the like, the prisoner has only had several short-term labouring type positions. He spent the majority of his adult life unemployed and in part this was due to his long-term alcohol and other drug abuse. He also said that having a bad name in his hometown - and Batlow is a relatively small town - it prevented him from getting work. 49I note, given the evidence of the prisoner and the background information as to his presentation on arrest, the prisoner was in a psychotic condition when he was admitted into the Junee Correctional Centre. He was placed in a type of segregation. At first blush this might have been seen as a punitive measure, but it turned out that it was purely for self-protection given his state, at least over a number of weeks after his arrest. The prisoner claimed that he was in segregation for three months. Whether that is entirely accurate or not is difficult to judge, but it is clear for a number of weeks the prisoner was in a quiet dishevelled state as a consequence of his ingestion of drugs and alcohol on 10 and 11 August 2012. 50The prisoner has been on protection since release to segregation. Again, in one breath this is said to be for the protection of his safety, but on the other hand there is other evidence made available in this Court over a period of time that Junee Correctional Centre is largely a protection gaol where there are a number of prisoners on 'protection' for reasons that have nothing to do with their own personal safety. Whilst in custody he has not incurred any internal charges. 51The Community Corrections Service report cites his attempts at abstinence and correction of his abuse of drugs over a number of years, but it also notes that the only rehabilitation that Mr Quinnell had attempted to control his alcohol and other drug abuse was a three-week program at O'Connor House several years ago. He claimed that he had not gained much from that program. Perusal of service records - that is records of the Corrective Services - indicated that the Community Corrections organisation had put in place "various community-based interventions that the offender had failed to take full advantage of in the past". 52The mental health nurse at Junee Correctional Centre noted that the diagnosis of the prisoner, as I pointed out earlier, was of the prisoner being in a psychotic state upon his entry to custody and that he had remained in that state for an extended period of time. At the present time he is compliant with the medication being provided to him in respect of his mental health issues. The Probation and Parole Service states, "Given the offender's propensity for violence and the level of violence and the current offence it would appear that an assessment for inclusion in the Violent Offenders' Therapeutic Program (VOTP) would be warranted. It is worth noting that if the offender is assessed as suitable for inclusion (in that program) there is an earliest possible release date prioritised waiting list for inclusion of up to 12 months and the time required to complete the program is approximately 12 months." 53Of course the seriousness of this series of offences and the other matters all taken into account require the prisoner to spend much longer in custody than a mere 12 months. This brings me to what the Community Corrections Service reflected upon as the prisoner's attitude to his offending. It struck me reading the account of the Probation and Parole report that whilst he expressed regret for the offence happening he felt that what punishment he had received up till the present time by being remanded in custody was sufficient for his purposes. 54It noted that he failed to verbalise any feelings in relation to the victim in his dealings with the Probation and Parole Service other than saying he was sorry that it happened. He was given "several opportunities to express remorse toward the victim" but he failed to do so. The offender appeared more concerned with how the offence had affected him and stated, "The Court doesn't need to punish me. I've punished myself enough since it happened". 55The presentation of the prisoner in giving evidence before me sought to paint a different picture. Mr Quinnell told the Community Correction Service that he probably needed residential rehabilitation, but was very equivocal about whether he would undertake such a program. He said that he had done it before and it had not helped him. He felt that the two years on remand had helped him, bearing in mind that he has been required to be abstinent. The report of the Community Services officer states, "Given the offender's lengthy and largely unaddressed alcohol and other drug abuse issues, his willingness to address these issues in a formal setting was challenged." 56The challenges put down to him by the Community Corrections Service in relation to a number of matters are recorded in the report. The conclusion, or assessment, of the prisoner by the Community Correction Service was that the prisoner was a person with a significant history "who demonstrated little insight into the effects his unresolved substance abuse, outstanding mental health issues, and propensity to violence had on his personal life and the wellbeing of those close to him". 57In relation to his time in custody it was noted he had not had access to particular programs because of the lengthy time on remand and that his longstanding alcohol and other drug abuse issues remain largely unaddressed and that he would need intensive assistance both in custody and on release from custody, preferably with access to a residential rehabilitation program. 58The Community Corrections Services report has been most helpful, as has the report of Dr Furst that I will come to in a moment. When the prisoner gave evidence he said that he was much heavier now than he was when he was taken into custody and he gave me details of the medication he was taking. He is also on the methadone program. He said he had no memory of relevant events. That is an impenetrable claim, although the potential for a lack of memory is supported by the report prepared by the police medical practitioner. 59He said in his evidence before me that he accepted responsibility for his conduct; that he felt bad for what he did. He said he was really sorry. He said that he could not imagine what the victim went through. He likened it to a nightmare where you cannot wake up. He said he would take the consequences as surely he must. He also asked his partner who was sitting in Court, as I mentioned earlier, for forgiveness. He asked that his apology be accepted and expressed a happiness that she was finding new happiness herself. 60He gave some details of his use of Xanax and I accept from his evidence and the researches of Dr Furst, the psychiatrist who has prepared a report for the defence, that he was first prescribed Xanax, at least by one medical practitioner that we know of, in late June 2012 for anxiety and depression and that he had filled a prescription for Xanax a couple of days before the offences. Apparently, he obtained about 100 tablets. 61He gave evidence, as I understood the situation, he was supposed to take with that prescription half a tablet twice a day. He said that throughout the day before the offending he had been consuming or eating a lot of the tablets and consuming alcohol. It is quite clear from the evidence he gave me, and his other history of abuse of alcohol and other drugs, that he was fully aware of the effects upon him of the combination of alcohol, prescription drugs, and/or prohibited drugs. 62He gave a history of having commenced using cannabis at 14, although as I said earlier, he could not remember being given any medication for ADHD. He claimed that his offending in the past was largely because he got mixed up with the wrong crowd. He was questioned very closely about what his alcohol consumption was in the period of time leading up to the offending. The evidence he gave was a little confused. There was reference made to binge drinking and he had to be asked by me to define what exactly 'binge drinking' was. His idea of binge drinking was drinking for 12 to 14 hours at a time. He would stop and have a break and then he would return to drinking or taking more drugs. 63I must say that he was a somewhat unreliable historian in relation to his drinking habits and the detail of his evidence was somewhat vague and in parts contradictory, although I do accept that for a period of time before this offending he was prone to 'binge drinking'. In fact, he has probably been involved in binge drinking for many years beforehand. When questioned about his abuse of prescription and non-prescription drugs he freely admitted that he had had opportunity to be deterred from taking them in the past but had not taken up those opportunities. He had not taken up opportunities to address his drug-taking in part because he said it was difficult to give up drugs and he freely admitted that he felt good taking drugs. 64He said that the relationship between himself and the victim was somewhat drug and alcohol co-dependent and there is some other history relevant to this, but in this particular matter there can be absolutely no suggestion on the facts available to this Court that the crimes with which I am concerned had anything at all to do with any alcohol or drugs that the victim had consumed. This is not a case of two drunken people sitting in a kitchen getting into an argument over something trivial, escalating into serious violence. As the facts make clear, the victim was in bed asleep when the prisoner decided to take out his frustrations upon her. 65The prisoner said he was prepared to undertake programs for relapse prevention and the Violent Offenders' Program. He said that the offending had led to him "losing everything" and going nowhere and he wanted to get away from Batlow and start a new life with the assistance of his brother. If he was going to move to Adelong, of course, he was not moving very far away from Batlow. 66He talked about his time in segregation and his condition whilst in custody, particularly his medical condition in the first few weeks or months, and he also gave evidence about his limited association protection. I accept that he has been denied access to programs but that would also follow from him being in remand, which is precisely what the Community Corrections Service wrote. The prisoner has been on remand now for over two years. 67The Crown's cross-examination of the prisoner concentrated on a very important issue in this case, an issue that seems to be quite self-evident when one closely examines the pre-sentence report and the prisoner's criminal history. The prisoner has been subject to parole on a number of occasions. The Crown concentrated on two such occasions. The sentencing in the District Court in 2002 and the sentencing in the Local Court in 2010. In relation to both of those sentencing exercises from the criminal history there are identified as conditions of supervision the need for the prisoner to undertake identified drug and alcohol counselling and rehabilitation. 68Although the Crown did not take him through all of his criminal history, one would be surprised if, in fact, he was not required to undertake similar programs when he was on parole on other occasions, even if judicial officers did not fix conditions of parole. One would have throughout the Parole Authority, with the extensive history it would have available to it, would know that this was necessary in the prisoner's case. 69He accepted in his evidence that his gaoling in 2002 was a 'wake-up call' as to the dangers of mixing alcohol and drugs and agreed that likewise in 2010 he got another wake-up call in relation to those issues. Yet he never heeded the warning. He said that although he got some benefit from the Getting SMART program as it is described, he had not really addressed the fundamental issues that contributed to his offending on this occasion. He gave evidence that when he was at large if he took drugs he did not think he would drink alcohol. Alcohol made him black out and would cause him to do things that he could not remember, whereas taking drugs did not have that effect. 70However, he admitted that he knew that by taking Xanax and drinking alcohol he would 'black out'. In fact, it is not clear, at least implicit in his evidence, that whilst he had only been taking Xanax on the history available to me for a period of some six weeks before this offending, clearly he had abused Xanax and alcohol in that period of time. He knew that taking drugs and drinking alcohol was part of his problem and he really had not addressed those matters. He said whilst he wanted to take issue with some of the contents of the Community Corrections report he really offered no detail as to what, if anything, could be said of the report to be inaccurate. He believed that the current term of imprisonment, being the longest term of imprisonment that he had been subject to, had assisted him greatly by forcing upon him sobriety. 71Dr Furst's report I have already referred to, and I must say I have seen a number of reports of Dr Furst's over the years. This is one of the more detailed reports prepared by him, and it seems to me quite a balanced report in a range of ways. It notes a number of aspects of his history, both generally and medically. It is to be said, however, that the prisoner has no history of admissions to psychiatric hospitals in the community, although his GP once referred him to a psychologist in Batlow in 2011. Whilst GPs have been obviously providing him with prescriptions for treatment of anxiety and perhaps depressive symptoms, there has been no diagnosis before he came into custody on this occasion of the existence of a major depressive illness or any other mental illness. 72So far as his history of drug use he, as I have said earlier, he commenced using cannabis from the age of 14 to 17 years. The picture sought to be put by his counsel in submissions was that the evidence suggested that he had been effectively a drug 'addict' since he was 14. There is nothing in the material available to this Court, even on the material dependent entirely upon the history provided by the prisoner, to support such a contention. But I do accept that he has been a user of drugs from time to time for a lengthy period of time and may have been dependent on some drugs from time to time. 73What he did tell the psychiatrist of some significance was that he had been taking up to 15 to 20 Xanax pills per day and also took Rohypnol pills in the period before his arrest. I took this to mean, as I have already outlined, not just on the night before or the morning of the commission of the offences but for some weeks beforehand. He had also been using what are described as Fentanyl patches, a potent opiate, on a daily basis, drank alcohol, and used a small quantity of ice in the days before his arrest. He estimated using drugs, especially Xanax and Fentanyl, for about 10 months at a problematic level. I go back to what I said earlier in passing that the medical records of him being prescribed Xanax in late June 2012 do not reveal necessarily, from his own history, his use of Xanax commenced at that particular point of time. 74I have noted the history of the prisoner's recollection of relevant events. I note the matters that are raised in what is described as other history. Dr Furst observed that he saw the prisoner on three occasions, which is an exhaustive and extensive period of consultation for psychiatrists preparing a report for the Court. He saw him on 12 October 2012, 19 June 2013, and 25 July 2014. The clinical observations show considerable improvement, particularly since the first consultation, although the prisoner's mood was somewhat depressed, if I could use that expression, in July 2014. There was no evidence of thought disorder. He was not paranoid and had no thoughts of harming himself, nor was he suicidal. His cognition was intact. 75The doctor also extensively examined the Justice Health records and the medications provided. The prisoner was by late October 2012 still "bewildered". He was claiming hearing voices and had other paranoid ideation, although by November 2012 he was much more settled. The diagnosis of Dr Furst is, firstly, a substance abuse disorder, which is selfevident; acute intoxication with alcohol, Xanax to use the commercial name, and Fentanyl on 11 August 2012; a prolonged period of drug-induced psychosis, including, as I would understand it, a period of time over which the attack occurred, and what is curiously described as "diagnosis of personality deferred, likely antisocial traits". I must confess that aspect of the report I found somewhat bewildering. One would not need a great deal of understanding of the concept of antisocial personality disorder to see a long history of antisocial personality disorder in the conduct of the prisoner. The criminal history in that regard is very much the 'proof in the pudding'. 76The doctor, under the heading 'Psychiatric and Psychological Mitigating Factors', reflects upon the effect of a combination of benzodiazepines and alcohol and in his opinion he said that, self-evidently so one might have thought, intoxication with the drugs and the alcohol had made him "more disinhibited and affected his judgment about his actions and the likely consequences of his actions". Whether, of course, this is in any way a mitigatory factor is a matter of some debate as was reflected in the discussion I had with counsel about that matter. He noted in the report that the prisoner was not "obviously paranoid about the victim" at the time of the attack, but at that time "his actions in attacking her in such a serious way suggests he was very angry, agitated, irrational to a degree, and lost control as a consequence of his acute intoxication and likely drug-induced psychosis at the time". The prisoner does not have any psychological or intellectual disability. 77Dr Furst opines that "optimising his psychiatric treatment and targeting his substance abuse may reduce the risk of Mr Quinnell reoffending. His drinking and substance abuse will require specific and ongoing drug and alcohol counselling when he is released into the community. Future factors to address in reducing his risk of reoffending include the provision of stable accommodation, psychological counselling, and ensuring compliance with psychotropic medication should this be indicated in the future". 78He also notes, of course, that the prisoner's history, reflecting upon his offending behaviour and substance abuse issues, presents him as an impulsive person "somewhat antisocial", his risk of reoffending is probably moderate to high. That must be self-evidently true without the benefit of a psychiatrist to tell us that. 79I just turn briefly to his brother's evidence in the affidavit. He noted the prisoner struggled at school. He noted the prisoner's pattern of using drugs and alcohol never really stopped in his late teenager or adult years. Sometimes he would reduce his intake, get some work, but he would never cease taking drugs and alcohol for any period of time. He said that the prisoner and the victim used a lot of alcohol and drugs throughout their relationship, but at the end of the day the prisoner cannot accord any blame to the victim for his conduct on this particular day. 80He notes that when he first saw the prisoner in custody in November, December 2012 the prisoner was not himself. He was asking what had happened. He was very upset. He was teary. He seemed shocked and worried. Of course, he no doubt would be presenting reactive to the fact, as I would understand it from the original indictment, that he was charged with offences more serious than the ones with which I am concerned. He indicated that the prisoner would like to relocate to Queensland where his mother lived before trying to get some work in Northern Queensland. He noted, in his intelligent assessment of the matter, that the prisoner had a long way to go but he knew him well and truly believed that he has finally committed to giving up his past lifestyle. It was noted the period in custody had been difficult for him and this was the longest time he had been off the grog and drugs for the time since his teenage years and that he believed that he had turned the corner and that he would support him in the future. 81When the learned counsel for the accused rose to address me on this matter I had read through her written submissions in a very brief and superficial way and I had not fully appreciated the skill and detail of her written submissions and the relevance of those written submissions to some of the oral submissions that she made. It might be fairly said in the context of the Crown in its submissions concentrating on particular aspects of what was put that there is not much by way of disagreement concerning the principles to be applied in this matter between the Crown and the accused. 82In deference to the great skill of the counsel for the prisoner in terms of the treatment of legal principle, I propose to deal with those matters now and return to some consideration of aspects of those written submissions by reference to the very authorities that she has cited. The plea of guilty I have already dealt with and the Crown's submissions in relation to that. With regard to the significance of the standard non-parole period in relation to counts 2 and 5, very accurately, learned counsel for the prisoner has submitted in accordance with the provisions of Pt 4 Div 1A of the Crimes Sentencing Procedure Act and the preceding authority of Muldrock v The Queen (2011) 244 CLR 120, that the setting of a non-parole period is but one part of the sentencing task and it was not to be treated as a starting point where there was a standard non-parole period to be considered. 83The correct approach, in accordance with Markarian (2005) 228 CLR 357, particularly at [51], is to identify all the factors, both statutory and common law factors that are relevant to the sentence, endeavour to discuss their significance and make a value judgment as to what the appropriate sentence is given all the factors in the case. 84The Court is to continue to assess the objective seriousness of the offence but there is no need to classify the offending or assess whether it falls from the middle range of objective seriousness. That having been said by citing [27] and [28] of Muldrock, it is to be borne in mind that s 54A(2) of the Act, which came into force in October last year subsequent to the decision of Muldrock, provides, "For the purposes of sentencing an offender the standard nonparole period represents the nonparole period for an offence in the table to this division that taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness.", 85Section 54B(2) of the Act provides, "The standard nonparole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender." 86It might be said, of course, that reflects as I have summarised from the submissions of learned counsel for the prisoner, the 'Muldrock' position. Of course, as the High Court in Muldrock pointed out, "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 87The revised legislative provision in s 54A(2) makes that clear. In this particular matter, if I might just step ahead a little bit, it was the submission of both the Crown and the defence that the first wounding with intent offence was the lesser of the two offences in terms of objective seriousness. That is selfevidently true. The detail of that I will touch in a moment. It was submitted on behalf of the prisoner that the first offence might be seen as below the middle range of objective seriousness, but the second offence in time, for the reasons advanced both orally and in writing, could be seen within the middle range of objective seriousness. 88The Crown, however, said that the second offence in time was above the middle range of objective seriousness. With regard to the assessment of the objective seriousness, it was conceded in the written submissions of counsel for the accused, quite obviously so, that the conduct of the prisoner was "brutal and sustained". There were three "unprovoked attacks on the victim". The first attack occurred upon the victim when she was laying in bed and I would suggest really defenceless, as she was on the second occasion. She was within her own home. The prisoner was within his own home too, but that does not, in my view, lessen the aggravation of the victim being entitled to believe that she might be safe in her own bed, or in her own home, from violent attack. 89It is not to be forgotten, of course, in relation to, for example, matters of domestic homicide and the like and serious acts of domestic violence, such as this, that the attacks do occur within the homes of the victims where they should be entitled to believe that they are safe. In relation to both count 2 and count 5 there is an absence of planning. There is an absence of premeditation in relation to count 2. One might have thought on the objective facts that whilst there was not a great deal of premeditation, probably a matter of some minutes in relation to count 5, there was greater premeditation in that matter than in the offence reflected in count 2 for several reasons. Firstly, the prisoner had completed his first attack on the victim, the victim had left him. Then the prisoner had been confronted by his brother and his brother's girlfriend who was promptly assaulted. They tried to dissuade him from causing the victim any further harm and then he went to where the victim had sought refuge and forced his way, notwithstanding her resistance, into the room. 90In relation to the count 2 I accept the submission that the injury to the victim, if not superficial, was not as serious an injury as inflicted later. The weapon involved was a pair of scissors. Although I do not think there is any doubt that a pair of scissors is quite capable, if administered to the right part of the body, of causing a fatal injury to the victim. In relation to count 5 there are other considerations, however, allowing for the lack of planning. Firstly, that attack occurred after the initial attack upon the victim and then an interregnum of some short period of time, although the prisoner was still as highly affected by alcohol and drugs as he was on the first occasion. The victim would have been particularly fearful having regard to what had happened to her before. The prisoner attacked her in the bathroom armed with a pair of scissors and a knife to occasion the wounds. In what order I was not informed either from the bar table, from the facts, or any other source of information. The prisoner knew that the victim was defenceless because she had laid in a foetal position and made herself obviously, by her body action, unwilling to resist him, although she had pleaded with him not to assault her. But he went ahead and assaulted her. 91It is submitted that he inflicted seven wounds, I am prepared to accept that enumeration, which injuries are said to be superficial injuries. The truth of the matter is the injuries to the hands are clearly defence injuries. The victim, very forlornly, was trying to protect herself from the blows of the prisoner and being stabbed or cut in the hands despite the fact she was putting up her hands indicating to the prisoner to stop. As to the seriousness of the injury to the tendons I cannot reach any concluded view about that because I do not have sufficient evidence, but it is not "superficial". 92However, both in relation to count 2 and count 5, there is the fact that the wounds were primarily directed at the head, in the first instance, and the head and the throat in the second instance, and whilst the weapons in question do not necessarily represent as lethal a weapon as might be seen in cases of this type, it is correctly identified in the submissions that there is no need to have a weapon in order to commit the offence upon the victim. There was, as I said earlier, discussion about the location of the wounds in the context of the injuries that are identified in the facts. 93In relation to this aspect of the matter, the seriousness of the injuries suffered by a victim of such an offence is an important aspect of determining the level of culpability in relation to an offence under s 33, as it then was in the Crimes Act. I was taken to particularly the decision of Mitchell and Gallagher v R [2007] NSW CCA 296. The facts of that are not important for particular analysis, save for the fact that in that particular matter the victim, who was aged 25, suffered a catastrophic brain injury that left him in a vegetative state like a living death. The prisoners in that matter, the respondents to the Crown appeal, were very young men, 21 and 20 years with almost negligible criminal histories. The Court of Criminal Appeal said this at [27], "The nature of the injury caused to the victim will, to a very significant degree, determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence. After all, that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to seven years for an offence under section 35 (of the Act) but there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. It should be borne in mind that if the victim had died the respondents would have faced a charge of murder. The injury suffered by the victim was, as her Honour noted, little short of death." 94In that case it was held that the nature of the injury could be envisaged in the very worst category. Ultimately, their Honours concluded that the finding by her Honour that the offending was within the middle range was in error. The offending was above the middle range and thus the sentences were adjusted. I have come to the conclusion in the context of all relevant matters that having regard to the nature of the injuries, taking into account the location of the injuries as well, the offence reflected in count 5 is within the middle range of objective seriousness. I bear in mind, of course, that it has been said that the 'middle' range of objective seriousness is not necessarily a "narrow band". The matter that saves the offence from being above the middle range of objective seriousness is the character of the injuries and the fact that fortunately for the victim - and it may, as I said earlier, be only a matter of good fortune given the intoxication of the prisoner - the injuries were not as serious as they might have been. 95There are some other features of the matter, however, that fall from the written submissions and from the authorities that I have to take into account. It is correctly pointed out that the offences with which I am concerned are offences of domestic violence of a most serious nature. In such matters, as is pointed out and is long held by courts of high authority, matters of specific and general deterrence, denunciation and the protection of the community are important considerations. 96This brings us to the issue of the significance of the prisoner's intoxication. For the purposes of determining the relevance of that in the context of the submissions made by learned counsel for the prisoner, I have considered its relevance in assessing the ultimate penalty to be imposed. In the decision of Mitchell, to which I earlier referred, the Court of Criminal Appeal said at [34], "There was little mitigation of the objective seriousness of the offence from the fact that the respondents were intoxicated by alcohol and the use of illegal drugs and that this, in some way, caused their uninhibited violence towards the victim. The Court cannot permit a person to rely upon the fact that he had been ingesting illegal drugs as in any way excusing offending conduct or its consequences. It may be mitigating insofar as it indicates that the offence was impulsive and unplanned and that the offenders' capacity to exercise judgement was impaired Waters v The Queen [2007] NSWCCA 219 [38]. In this case its chief relevance was as to the prospect of the respondents' rehabilitation in light of the evidence that they had both been addressing that issue." 97The decision of Waters, to which I was referred, states (at [38]), "The fact that an offender was intoxicated at the time of committing an offence is not of itself a reason for mitigating the sentence that should be imposed on the offender. However, the fact that an offender was intoxicated at the time of committing the offence may be taken into account as mitigating the objective criminality of the offence, insofar as it indicates that the offence was impulsive and unplanned and that the offender's capacity to exercise judgement was impaired (citing Henry v The Queen [1999] 46 NSWLR 346, particularly as per Woods CJ and CL [273]). In the present case it is clear that by reason of his state of intoxication the applicant's conduct was impulsive and unplanned and his capacity to exercise judgement was seriously impaired." 98I am prepared to make that finding in relation to this prisoner in respect of count 2. That finding has some resonance and relevance to the assessment of the conduct of the prisoner in relation to count 5, but it is somewhat limited or restricted by the fact that the prisoner's conduct as demonstrated, in relation to count 5 and again in relation to count 7, followed upon the intervention of third parties. The entreaties upon the prisoner to desist from his conduct fell on 'deaf ears'. 99In the decision of The Queen v Coleman ((1990) 47 A Crim R 306) which has been cited in the written submissions of counsel for the prisoner, Hunt J, then himself the Chief Judge at Common Law, said (at 327), "The degree of deliberation shown by an offender is usually a matter to be taken into account. ... intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances it may aggravate the crime because of the recklessness with which the offender became intoxicated. In other circumstances it might mitigate the crime because the offender has, by reason of that intoxication, acted out of character." 100The first thing to be observed about this prisoner is that the prisoner had not "acted out of character". He may not have acted with such violence before towards a partner or some other person, but his acts of violence when affected by alcohol and drugs or a combination of both were reflected in his criminal history. It should also be pointed out that the prisoner, in my view, was well aware of the potential for risk to him and others by his ingestion of prescription drugs and alcohol and yet he went ahead and ingested what he would describe as copious quantities of Xanax and alcohol reflecting what could fairly be described as recklessness on his part as described by Hunt CJ at CL. 101There is one other decision I wish to quote in the context of the very interesting and helpful discussion I had with learned counsel about this aspect of the matter, given detailed written submissions, the full quality of which I had not fully appreciated last Tuesday. I refer to the citing of Antonio Jose Mendes v The Queen [2012] NSWCCA 103. In that judgment Davies J, quoted with approval the observations of Rothman J in a decision of Stanford [2007] NSWCCA 73, particularly at [52] - [55] which includes the passage that I have cited from Coleman. Davies J said at [75]; "In the present case the intoxication came about from two selfadministered drugs as well as alcohol. There was deliberation involved in both the drug taking and the alcohol consumption or at the very least recklessness. The statements made by the applicant to Mr Glancy suggest that the ingestion of the drugs for the specific purpose of becoming aggressive was not out of character. In all the circumstances, far from drug taking being a mitigating factor, it was an aggravating factor, although the sentencing judge did not specifically regard it as such." 102With respect to the submissions, as I have said earlier, it also becomes an aggravating factor in the way in which Hunt J particularised in Coleman in this particular case. Having said that I note what Wood J said in Henry, reference to which I have already made. It is to be pointed out that the particular matters that he reflected upon, having relevance to the assessment of objective facts and subjective circumstances, arising out of drug addiction as a motivation for committing the offence of armed robbery, are also concerned with the issue of motivation for committing other crimes. There is nothing relating to the prisoner's ingestion of alcohol or drugs that is in any way concerned with the prisoner's 'motivation' here. Of course, what his Honour says about 'impulsivity' of the offending, has relevance at least in relation to count 2, as with the lack of planning in relation to that count, and to some extent in relation to count 5. I have taken that into account in this matter. 103I accept that the prisoner's ingestion of drugs also affected his capacity to exercise judgement, to appreciate the consequences of his act. But as Davies J pointed out, these were actions by him following upon entirely voluntary abuse of alcohol and drugs in circumstances where there was no compelling reason for him to have ingested the alcohol or drugs and where he was well on notice of the dangerousness of this conduct. So far as the origins of his dependency on the Xanax or prescription drugs and alcohol, there is little in the way of his background that casts any light upon this. 104There is no reason to believe that simply because he had behavioural problems as a 13yearold he was preordained to be an abuser of drugs and alcohol. In any event, any causal connection between his developmental problems and his circumstances at 35 were well and truly severed by the effluxion of time and the multiple interventions of agencies trying to assist him following upon offending, whose assistance he refused to accept or could not accept with any dedication. Furthermore, in relation to the Henry matters, I note as well that Wood J pointed out that a person's background of abuse of drugs in the general sense may reflect or impact upon their prospects of recidivism and rehabilitation, which, as he points out, may be a "two edged sword". Such is the case here. 105The reference to drug addiction and related addictions not being the matter of personal choice was the matter of debate in Henry. I know that Simpson J disagreed with the Chief Justice's analysis, but nobody could argue that issues of free choice or personal choice or some other force operating upon the prisoner which compelled him to behave the way he did here could offer any mitigation in this particular case. 106With regard to the submissions of counsel for the prisoner, I have taken into account her analysis of what Dr Furst said and other histories relating to the prisoner's upbringing. Again, I have already pointed out it offers little in the way of explanation and nothing in the way of mitigation for the prisoner's conduct on this night. I have noted what has been put about protective custody and I have taken those matters into account. Of course, the lengthy remand of the prisoner has been a result not of the prisoner's fault, of course, but also a result of the matter being committed for trial and the time that it has taken for the matter to be finally resolved. 107The prisoner, once sentenced, will be classified and will have access to programs, subject to any claims of protection I cannot predict what will happen in the future in that regard. So far as his segregation in the first "three months of custody" I take that to be entirely a matter of preservation of the prisoner. So far as his rehabilitation and future prospects are concerned, it is submitted that because of his admission of his guilt, the fact that he states that he is genuinely sorry, the fact that he ceased illicit drug taking (as he must whilst in custody one would have expected) and claims no interest in returning to his past lifestyle and is mentally stable, as well as his good behaviour in custody and the support of his mother and brother, speaks favourably of his prospects of rehabilitation. 108I have taken all those matters into account. But I also have to take into account his failure to take advantage of the opportunities offered in the past. I am fully appreciative of the time that he will be required to spend in custody he will come out a changed man and hopefully that change will be for the better. But I am unable to conclude that he has real prospects of rehabilitation that could be found favourably to him on the balance at the present time. 109So far as totality of criminality is concerned, I have structured the sentences to be imposed by reference to the totality of criminality. I have afforded a marginal accumulation of count 2 upon count 7. The sentence for count 7 must of necessity be the least sentence. I have also accumulated the sentence to be imposed for count 5 upon count 2. I am usually reluctant to multiple accumulations in respect of three separate offences, as opposed to more than three separate offences, particularly occurring close in time, but it seems to me, with respect, that bearing in mind the assault occasioning actual bodily harm occurred last, that the prisoner pursued it with such vigour having inflicted wounds upon the victim inside the house, had chased her and had attacked her with much severity, albeit without causing substantial or significant injury, that particular crime in this context requires some further term of custody to reflect its individual seriousness. 110The commencement of the date of sentence shall be from 11 August 2012. I have favourably considered the issue of "special circumstances" to the benefit of the prisoner, apart from those arising from the partial accumulation of sentences (see s 44 Crimes (Sentencing Procedure) Act 1999). There clearly is a need, if the prisoner is prepared to take it up, for an extended period of supervision to assist the prisoner to adjust to community living and to give him an extensive opportunity to demonstrate his capacity for reform by taking up those avenues of drug rehabilitation, alcohol rehabilitation and the like that, of necessity, he will need to undertake. Six years or five years, or three years or two years, of abstinence is no cure for a person who has abused drugs and alcohol over what he claims to be a 20 year period. The minute he goes back into the community he is vulnerable to and susceptible to outside influence. He needs just more than abstinence to avoid the temptations of the future. 111I have referred, in part, to the Crown's helpful submissions. I have already pointed to what the Crown had concentrated upon. The Crown properly put to the Court that it was of significance in this sentencing exercise that the prisoner's offending behaviour, that is, aggressive, violent behaviour when affected by alcohol and drugs, was not uncharacteristic and the prisoner was well on notice of the dangers of that and had denied himself the opportunity, when it was given to him, to address these matters even when under the compulsion of parole. 112The prisoner is correctly to be identified as a person who presents in certain circumstances, not when sober of course, but when affected by drugs and alcohol, a danger to others in the community and the prisoner had failed opportunities to rehabilitate himself. I have already dealt with the assessment by the Crown in its very helpful submissions as to the categorisation of the objective seriousness of the offending. I have already dealt with the issue of the submission that the offending in count 5, whilst more serious than the offending in count 2 to some degree, was above the middle range of objective seriousness and I have already pointed out whilst I accept some of the features of the matter are selfevident, as the Crown points out, the ultimate injuries that were suffered need to be considered as well even, if they are, in part, a matter of happenchance. 113I have dealt in passing with the matters that arise under s 21A(2) and (3), that is the relevant aggravating and mitigating factors that exist in addition to those that are selfevidence from the pleading in the elements and the facts understood in the context of common law principles. In regard to the issue of aggravating factors in relation to counts 2 and 5, I have pointed to the fact that the victim was attacked in her own home albeit in the home of the prisoner himself. It is to be pointed out, of course, sometimes it is thought that attacks upon strangers might be viewed more seriously than attacks upon persons that are known to the assailant, but that is not necessarily the case. 114The approach of the Courts to the treatment of domestic violence offences, particularly those involving extreme violence or significant violent attack is consideration, as the defence correctly pointed out, to greater weight being given to personal deterrence and general deterrence. With regard to mitigating factors, I found, as I earlier indicated, that the offending was not planned or organised criminal activity. That is selfevident. I am prepared, ultimately, notwithstanding the equivocation of the prisoner in his discussions of this matter with the Community Corrections officer, that the prisoner has sought to show remorse by, in his evidence here, accepting responsibility for his actions and acknowledging the harm that he had caused to the victim. But these offers of remorse, which I do accept as a mitigating factor on balance, have to be seen in the context of the delay that has taken place before the prisoner got to this position. 115I am prepared to accept as well, because of his ingestion of prescription drugs and alcohol, the prisoner was not fully aware of the consequences of his actions. But as I have earlier pointed out, the prisoner's past behaviour had certainly put him on notice of the dangers of such behaviour and that matter in mitigation is not of great significance. I must say in passing the report of Dr Furst does not point to any mental condition or mental illness such as to warrant consideration of lesser weight being given to general deterrence as discussed in cases such as Engert or Scognamiglio. I am mindful, of course, of the summary of the relevant principles undertaken by McClelland CJ in the decision of De La Rosa [2010] NSWCCA 194, to which I have referred in earlier matters in these sittings. His Honour, in that decision, sought to analyse those authorities prior to 2010 that dealt with the relevance of a mental illness or a mental disability in sentencing. 116As I understood the submissions put to me, no submission was made that lesser weight should be given to general deterrence in the way in which the matter has been assessed in the authorities to which I have referred. In any event, in this particular matter there is nothing in the character of the prisoner's condition or mental condition which warrants consideration of hardships of custody as might exist for someone who is mentally ill or suffering from a mental disability. 117Even if it could be said properly that the prisoner by reason of a selfinduced drug psychosis was entitled to lesser weight being given to general deterrence, need would be given to consider what Gleeson CJ said in Engert ((1995) 84 A Crim R 67), that the very character of the condition that would give rise to that consideration would need greater emphasis to be given to specific or personal deterrence having regard to the criminal history of the prisoner. 118The Crown conceded that the prisoner's criminal history was not an aggravating factor, but it certainly is not a matter that entitles him to any particular leniency. It has been pointed out in the cross-examination of the prisoner that it demonstrates the past failure of the prisoner to take up the opportunities offered to him in the course of parole supervision. Nothing was put to suggest in any way that the prisoner's condition in any way reduced his moral culpability for the offending with which I am concerned. 119His plea of guilty is, of course, itself a mitigating factor. That is reflected, too, in the discrete discount he gets for the utilitarian benefit of the pleas of guilty. Ultimately, in this matter when all is said and done, even though there is a need to promote his rehabilitation despite his mature age and his past criminal history, this is a case where issues of personal and general deterrence, adequate punishment, protection of the community, denunciation of the conduct of the offender, and recognition of the harm to the victim and making the prisoner accountable for his actions have significant roles to play. 120The last matter I wish to refer to is the material contained in the statistics that have been provided. Again, they do not assist a great deal. The most they do is provide the Court with some general range of penalties that have been imposed by the 'Higher Courts', as I would understand it, between 2008 and 2013. In fact, in the decision of Mendez there is a discussion of ranges of penalties in relation to cases involving the infliction of grievous bodily harm or acting with intent, as is the case in the decision of Mitchell. But no cases were provided to me for any comparative purpose. Ultimately, all the statistics can tell me is the general range of penalty imposed in relation to a range for conduct, facts of which are largely denied to the Court. 121Ultimately, for the prisoner, Mr Quinnell, I have concluded that the starting point of any sentence in relation to count 7, the assault occasioning actual bodily harm, should be two years and nine months in the context of a maximum penalty of five years imprisonment. In relation to the offence identified in count 2, the starting point of any sentence imposed should be five years imprisonment and the starting point for any of the sentence in relation to count 5 should be seven years and six months before the discount for the utilitarian benefit of the plea of guilty. The total sentence upon which I have settled for this prisoner is a sentence of nine years two months imprisonment with a non-parole period of six years. 122Could you stand up, thanks very much, Mr Quinnell? I am sorry to have taken so long, but there is quite a deal of territory to cover. 123In relation to count 7 you are convicted. You are sentenced to a term of imprisonment of two years four months to date from 11 August 2012 and to expire, on my calculation, on 10 December 2014. 124In relation to count 2, you are convicted. You are sentenced to a term of imprisonment by way of nonparole period of two years and six months. That will commence from 11 December 2012 and expire, on my calculation, on 10 June 2015. In relation to that sentence I fix a balance of sentence of one year, nine months. 125In relation to count 5 you are convicted. In sentencing you in relation to that matter I have taken into account the matter on the Form 1. You are sentenced to a non-parole period of three years and two months to date from 11 June 2015 to expire on 10 August 2018. In relation to that sentence I fix a balance of sentence of three years and two months to expire on 10 October 2020.