R v Murray [2014] NSWDC 200

District Court New South Wales

Medium Neutral Citation: R v Murray [2014] NSWDC 200 Hearing dates: 24, 26/03/2014 Decision date: 27 March 2014 Jurisdiction: Criminal Before: S Norrish QC Decision: Term of imprisonment of 16 months with a non-parole period of 9 months. Catchwords: Criminal - sentence, assault occasioning actual bodily harm, Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Johnson v R [2003] NSWCCA 129 Cardoso v R [2003] NSWCCA 15 Thomson and Houlton [2000] NSWCCA 309 Bugmy v The Queen [2013] HCA 37 Munda v Western Australia [2013] HCA 38 R v Engert (1995) 84 A Crim R 67 Veen (No 2) v The Queen (1988) 164 CLR 465 Callaghan v R [2006] NSWCCA 58 R v Fernando [2002] NSWCCA 28 Category: Sentence Parties: Director of Public Prosecutions Trevor Clayton Murray - Offender Representation: Mr Creasey - Director of Public Prosecutions Mr Nash - Offender File Number(s): 2013/00015836

Sentence 1HIS HONOUR: Trevor Clayton Murray was jointly arraigned with Edward Joseph McGrath last Monday, 24 March 2014, on a charge alleging against each of them that they on 15 December 2012 at Cowra in the State of New South Wales being in company with each other did assault Peter Beattie thereby then occasioning to him actual bodily harm. 2This is an offence contrary to s 59(2) of the Crimes Act 1900 which the Crown informed me and which I accept carries a maximum penalty of seven years imprisonment. It does not have a standard parole period. 3The plea of guilty by Mr Murray to this particular charge which was the only charge on the indictment was apparently made some time before the end of last week. I have no evidence before me about the course of the negotiations but I accept from the discussion I had at the callover last Thursday that discussions relating to the matter to negotiate a possible resolution of the matter without a trial had been going on for some time. The prisoner had offered to plead guilty to an offence of assault occasioning actual bodily harm with which he was charged when the matter was before the Local Court and I accept that a letter was forwarded to the Director of Public Prosecutions representatives in relation to that matter in April last year. 4In that regard that charge stood with either an offence alleged contrary to s 111(2) Crimes Act 1900 or 112(2) Crimes Act 1900 relating to the same set of events, depending upon which document amongst the various court attendance notices produced at the Local Court one wishes to rely upon. Learned counsel for the prisoner showed me some information, or some documentation, that suggested that the 111(2) Crimes Act 1900 offence, one that carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years, was not actually proffered until June when the accused was committed for trial. In any event it is neither here nor there because the offender was ultimately committed for trial, to summarise, for the aggravated breaking entering and commit serious indictable offence. 5I am informed and I accept, that the offer to plead guilty to the assault occasioning actual bodily harm charge occurred before the formulation of that charge. 6Learned counsel for the prisoner particularly submitted that I should grant the prisoner either a discount of 25% upon the otherwise appropriate sentence to reflect the utilitarian value of the plea of guilty entered in this Court or alternatively up to 25% upon the otherwise appropriate sentence. This was submitted having regard to the circumstances that I have shortly summarised above. It was submitted that if the accused had been permitted to plead guilty to the assault occasioning actual bodily harm charge at the Local Court that would have been matter that would have required consideration of the fact that they were in company. 7The counsel for the accused took the Court to a decision of the Court of Criminal Appeal of Johnson [2003] NSWCCA 129, particularly I was drawn to the judgment of Bell J for the Court set out between [37] and [45]. I do not propose to analyse that judgment other than to refer to the discussion that I had with the Crown Prosecutor and counsel for the prisoner earlier today. The error of law in that appeal identified by the Court necessitating judicial intervention was the failure of the judge at the court below to have any regard to the applicant's willingness to plead guilty to the charge of manslaughter albeit that that offer was not accepted by the prosecution. Her Honour, giving the judgment for the Court of Criminal Appeal noted at [44], referring to other authorities including a judgment of Hidden J and a judgment of Grove J, that the learned sentencing judge was in error. The exercise of the judge's sentencing discretion having miscarried it was necessary for the Court to consider the question of sentence afresh (see [44]-[45]). I have also had regard the discussion that was set out within the judgment at [41] of some relevant considerations to the issue of discounts for matters, where offers or pleas of manslaughter are not accepted by the Crown per Hidden J at [17]-[21] in the decision of Cardoso [2003] NSWCCA 15. 8It is to be pointed out of course that that decision is of some assistance in addressing the question of circumstances in which courts err when they fail to give any relevant consideration in the circumstances there pertaining. But, of course, it is not a matter that is anywhere near on all fours with the situation I have here. In this particular matter in any event the accused had made an offer to plead to a charge that ultimately he did not plead guilty to. He was committed for trial. The plea of guilty to the current charge was entered into by him after negotiations a short time before the trial was to commence. 9In relation to the matter there has been a disputed facts hearing which has not been entirely unsuccessful, but the fact that there has been a disputed facts hearing in my view is not a matter that detracts from the need to recognise the utilitarian value of the plea of guilty. 10In the context of what was said by the Court of Criminal Appeal in the guideline judgment of Thomson and Houlton, having regard to the range of discount that may be given to recognise the utilitarian value of the plea of guilty, the discretionary character of the calculation of discounts, but the need for the Court to take into account all relevant considerations, I am of the view that a discount of 20% should be provided to the offender for that plea of guilty. The learned crown prosecutor suggested the range of discount should be between 10% and 15% and I have already set out the submission of counsel for the prisoner. 11In this matter there was a statement of facts which raised matters about which there was dispute requiring evidence from Mr Beattie and some additional evidence being tendered such as his statement, a statement from a physical evidence officer, photographs and the transcript of a triple-0 call made by Mr Beattie after he had been assaulted. Most of the disputed facts issues were matters particularly pertinent to the co-accused Mr McGrath. Although, this was a case, putting aside the pleading of the offenders being in company, where clearly the proof of the assault occasioning actual bodily harm element was a matter of establishing a joint criminal enterprise. 12Although the matter that particularly concerned Mr Murray fell away, given the evidence of Mr Beattie, I propose to resolve matters in dispute for the purposes of making a fact finding for the sentence of Mr Murray. 13The daughter of the prisoner Mr McGrath, as I understand, it was injured in what was described as a disturbance the night before the assault upon Mr Beattie at the home of another person, Ms Gordon, in Cowra. Mr McGrath, the facts clearly show, believed that the person who had injured his daughter was in fact Mr Beattie. He had a belief that Mr Beattie had kicked his daughter in the head. Whether this allegation against Mr Beattie is true or not was not a matter dwelt upon in the sentence proceedings. The facts make it clear that the offender Mr Murray and Mr McGrath are to be sentenced in the context that was Mr McGrath's belief. 14Mr McGrath went to Mr Beattie's home at Cowra at about 3pm in the afternoon clearly to confront him in relation to what he believed to be an assault upon his daughter. He went in company with Mr Murray and was driven there by another person referred to in the facts who at a later stage intervened in the altercation between Mr McGrath, Mr Murray and Mr Beattie. That person was Sandra Anderson. 15Mr Beattie saw the motor vehicle that was carrying Mr McGrath and Mr Murray arrive and as they approached him he retreated into his home followed by the two offenders. He retreated after Mr McGrath said to him the words, "You're the fellow who kicked my daughter in the head last night". The facts tendered in this Court do not reveal that he disputed that particular allegation. 16The two accused then entered his house and Mr Beattie was assaulted in the manner that has been particularised. What is clear from the evidence of Mr McGrath, which is of course relevant in the sentencing proceedings, was that he struck Mr Beattie with a punch and Mr McGrath choked Mr Beattie in a struggle that apparently moved, for part of the time while the both men were on the floor, from the hallway ultimately to a bathroom. 17In the course of the struggle Mr Beattie suffered some injuries. A witness saw some blood coming out of what looked like two lacerations on the top of his head and there were some graze marks on his top left cheekbone. These injuries are, in the absence of any medical evidence, relatively minor. I accept that Mr Beattie was frightened by the arrival of the two men and certainly entitled to be frightened at the fact that he was approached and assaulted in his own home. He did not know the two offenders well as I understand it, in fact Mr McGrath was a stranger to him although apparently from the evidence of Mr Murray I take it that at least he had met Mr Murray the night before. He certainly knew why the men were there. 18The facts are relatively silent about the actions of Mr Murray other than his presence and perhaps some actions at one point in holding Mr Beattie. This brings me really to the matters in dispute. 19The facts allege that the offender Mr McGrath was on Mr Beattie's back with his knee in his back with both hands around his neck pulling his head back. I am not satisfied beyond reasonable doubt that that allegation has been established. A further allegation that was the subject of dispute was set out in para 11 which alleged that, "The struggle on the floor continued during which the offender Murray held Mr Beattie while the offender McGrath stood and stomped on the back and side of Mr Beattie's head". 20Mr Beattie's evidence in this court resiled from a clear assertion that Mr Murray was in fact holding him at the time that he alleged that occurred. I am not satisfied beyond reasonable doubt that Mr McGrath stood and stomped on the back and side of Mr Beattie's head. 21The other matter that was primarily in dispute relating to Mr McGrath was the allegation that as they departed Mr McGrath turned and told Mr Beattie that if he called the police he would kill him. I am satisfied beyond reasonable doubt that that allegation was made. 22The reason I have come to these conclusions are firstly that Mr Beattie in the detail of his evidence did resile from the detail of his statement. The injuries that he suffered are not, in my view in light of the evidence of Mr Beattie, consistent with being stomped on the head whether it be by a pair of sandshoes or other light-weight footwear or boots as claimed by Mr McGrath. Certainly there are no injuries consistent with the allegation of Mr Beattie, that he was stomped on the head in a way that his head came into collision with the concrete floor of the bathroom. The injuries were relatively minor. But there are other matters to take into account. The physical evidence from the physical evidence officer and the photographs do not support the very graphic account that Mr Beattie gave in his statement of the manner in which the men forced entry, on his version, into the house. In fact Mr Beattie made claims in his statement, particularly at para 10, which are contradicted by the physical evidence. As it transpired the charge preferred by the Crown so far as pleading is concerned at least shows that the Crown abandoned an allegation of forced entry in that material respect. 23Mr Beattie spoke to a triple-0 operator after the assault has occurred. I take into account that he would have been shocked by what had happened to him, but I note in relation to that triple-0 call that he made no reference to the stomping that he later disclosed to the police when he made his statement. He did, however, as the Crown pointed out to me, in the triple-0 call referred to the fact that one of the offenders, that was Mr McGrath as I understand it, had threatened him that if went to the police he would kill him. 24In the scheme of things, however, I do not regard this as a serious threat. Yet it is a matter that represents to my mind Mr McGrath mouthing off in the spirit of aroused emotions, or in the spirit of departing in high dudgeon having been involved in the assault of Mr Beattie earlier. 25In relation to the other matter, not of really great moment as far as I was concerned that I have not already referred to, I am not satisfied beyond reasonable doubt that Mr McGrath had to be pulled away by another person. Mr Beattie in fact resiled from a positive assertion of that. 26I accept that the offender was called away by Ms Anderson. I accept that there is absolutely no doubt as was apparent from Mr McGrath's own evidence, that he was very angry. That is a matter that will need to be addressed at some later time in the context of his criminal history and other matters with the aid of submissions from his counsel. 27It is to be fairly said in relation to the matter of course that it seems a little unclear as to why Mr Murray involved himself in this matter. It would appear as though he was sort of picked up at some time during the afternoon and taken to the house. He apparently had no particular grudge against Mr Beattie. But then again he played a very minimal role. Certainly there is no allegation in the facts tendered that he struck a blow. But again he stands to be sentenced for his participation in the relevant joint criminal enterprise. 28The prisoner was arrested on 15 December 2012 and granted bail. I note as it be relevant to all the matters I have to take into account under s 3A Crimes (Sentencing Procedure) Act, s 21A of the Act and of course s 44, that on his release on bail it is clear the offender committed other offences between then and April 2013. He then came into custody in relation to those fresh matters and received a gaol sentence on 19 June 2013, at which date as I understand it he was committed for trial in relation to the matters with which I am concerned. 29The Magistrate for some reason best known to himself when fixing a non-parole period of six months for the fresh charges backdated the sentence to March instead of April. That matter is not entirely explained by the custody record or the criminal history. He directed that the offender be released to parole in early September 2013 but the offender remained in custody because he was bail refused in relation to the current matter in its various guises and he remained in custody until he was granted bail by the Supreme Court some time in late November. Bail could not be entered until 4 December 2013. 30Once he was granted bail he was automatically released to parole in accordance with his Honour's direction. But he breached that parole it would seem by walking out of Oolong House, a drug rehabilitation program conducted in Nowra, particularly concerned with providing assistance to Aboriginal people. 31He walked out of that program on or about 20 December 2013, as I understand the evidence. I have had very close regard to the prisoner's evidence about his reasons for leaving Oolong House. I accept that whilst in custody the prisoner had suffered a number of very significant personal tragedies including the loss of his mother and his sister and was unable to go to funerals and had no doubt a great deal of grief to resolve. 32He also gave evidence about the temptation of drugs within Oolong House. But, ultimately on analysis, both in the manner of its giving and the detail of it his explanations for leaving Oolong House, given all the circumstances, including the fact that he was on parole and on Supreme Court bail were not convincing or satisfactory. 33The truth of the matter is when one has regard to his evidence and his explanations for leaving the program, even accepting an underlying sense of grief, he chose to discharge himself from the program because it did not suit him to remain there. This led to his re-arrest on his breach of bail and I assume by reason of a decision made to revoke his parole which was revoked he is in custody serving the balance of the sentence, the balance of sentence being something in excess of five months. 34I am informed that he has spent in custody in relation to the current matter slightly shorter than three months that is solely referrable to this matter. The Crown drew my attention to the fact that he was still serving the sentence imposed by the Magistrate, but whilst I note that of course, that submission ignores the fact that but for this matter he would have been released to parole on the expiry of the non-parole period in September 2013. 35To endeavour to ensure full recognition of the time spent in custody I propose to backdate the sentence I impose to, for three months from the date he pleaded guilty, not today's date which was 24 March 2014. 36I have played close regard to the evidence the prisoner has given. I accept the prisoner has had a most disadvantaged upbringing which is reflected in his past social and present social circumstances. It is also reflected eloquently in one sense by his history of offending. 37I accept, of course, that he had a close relationship with his mother, that he and his mother and his siblings were abandoned by his father when he was of a young age. I accept in the context of his upbringing on Erambie Mission that his social circumstances have contributed to his long-standing use or abuse of drugs and his dependency upon prescribed and prohibited drugs. 38The prisoner did give evidence that on the night before the commission of the offence, and I take that to include the early morning, that he had taken drugs such as amphetamines, oxycontin and the like. He explained when asked if he was affected by drugs that the drugs were, "coming through (his) system". But the witnesses' evidence about the extent that he was affected by drugs was quite unconvincing and quite imprecise and in my view deliberately guarded. In any event there does not appear to be any particular evidence within the facts or the other material presented to me objectively of the effect of the offender being substantially affected by drugs or alcohol. 39I bear in mind it takes quite a deal of time for any sort of drug, be it prohibited or prescribed, to be eliminated from a person's blood. But this offence occurred at 3pm in the afternoon. As I said in any event his evidence was ultimately unconvincing. 40The prisoner also gave evidence in relation to a number of matters that are set out in the pre-sentence report that was prepared for the offences for which he was sentenced in June 2013 at the Cowra Local Court. That report confirms, given the extensive contact the prisoner has had with the Probation and Parole Service or Community Corrections, a long history of binge drinking and drug abuse dating back to the age of ten and in more recent years abuse of oxycontin immediately prior to the preparation of the report in May 2013. 41The report chronicles the attempts by the prisoner to deal with relationship issues that have led to a number of instances of domestic violence committed by him against others and other related charges over a period of time. The report notes the prisoner's continual failure to either respond favourably to those programs, to undertake them or to complete them. For example in 2011 he self-discharged from a drug rehabilitation program and claimed at the time that he would never return or not return to a residential program. He provided, as I said, a history of drug and alcohol abuse over a lengthy period of time, but he is noted to have a failed to respond to suggestions from Probation and Parole Officers to undertake treatment programs. I accept that a lot of his past offending to that point had been dominated by his abuse or use of drugs and alcohol. 42An escape from police custody denied him an opportunity to undertake drug rehabilitation programs in custody although he was able to undertake some "recovery" programs. Whilst the prisoner gave evidence before me of being in custody and wishing to improve himself and address offending behaviours it is to be borne in mind that the prisoner is now 40 years of age and as the criminal history reveals as the probation and parole service report reveals he has had many opportunities in the last ten years for example which has not taken or specifically renounced. 43In this particular matter, in the context of the prisoner's aboriginality, I was required, it was said in the submissions to have regard to what we have described in submission as "Bugmy principles". I sought assistance from counsel as to how those particular principles in conjunction with "Fernando principles" might be pertinent to this particular sentencing exercise. 44In early October 2013 the High Court handed down decisions in two judgments which were directly related, although concerned with different applicants. One decision was Bugmy v The Queen [2013] HCA 37. The other was Munda v Western Australia [2013] HCA 38. 45The grant of special leave in Bugmy concerned a number of issues, some which did not find favour with the learned judges of the High Court in majority, although the matter was remitted ultimately to the Court of Criminal Appeal because of the failure of the Court of Criminal Appeal at first instance to properly consider the matter, in the absence by the prosecution of a clear articulation of the basis upon which it could be recognised as a Crown appeal. 46In Bugmy v The Queen, at [41], the majority of the Court said this, "Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices but to recognise this is to say nothing about a particular offender. In any case in which it is sought to rely on an offender's background of deprivation and mitigation of sentence it is necessary to point to material tending to establish that background". 47This observation was made in the context of complaint being made, if that is the correct expression, of the fact that the mere assertion of something as being so may not necessarily provide a basis for finding that it is so. 48This general observation at the beginning of that passage is one example of judicial expression reflecting upon the findings of the Royal Commission into Aboriginal Deaths in custody where The Hon Elliott Johnson QC concluded, "It is important that we understand that the legacy of Australia's history as it helps to explain the deep sense of injustice felt by Aboriginal people, their disadvantaged status today and their current attitudes towards non-Aboriginal people in society. In this way it is one of the most important underlying issues that assists us to understand the disproportionate detention rates of Aboriginal people." 49In the subsequent in time judgment in Munda, the majority made this observation at [52]ff, "In R v Fuller-Cust [2002] 6VR 496, Eames JA observed that in the application of the principle stated by Brennan J (in Neal v The Queen), regard to an offender's Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender's Aboriginality is not 'overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored'. Moreover, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they are engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender's recidivism." 50Their Honours went on to say, "Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instance offence. It would be contrary to the principles stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systematically as less serious than offending by persons of other ethnicities." 51Their Honours said, "It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised and alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of conduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidents of crimes, particularly crimes of passion." 52Their Honours went on to say, however, there are three points to be made. First of all, the criminal law is not limited to the utilitarian value of general deterrence, special deterrence or personal deterrence as a relevant matter. The other point to be made is that sometimes addictions may be relevant to the assessment of re-offending. The third point their Honours raised was that raised by Gleeson CJ in the Court of Criminal Appeal decision in New South Wales of Engert, "Where matters that point in one direction may also point to another direction such as a mental disability that might leaven the need for greater weight to be placed on general deterrence but leading to greater weight to be placed on personal deterrence". 53I accept, of course, what the High Court majority said in relation to Fernando principles as they have been described, that is that the principles laid down by Wood J in the sentencing exercise of Mr Fernando from Brewarrina, where the High Court observed, "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things a background of that kind may compromise the person's capacity to mature and learn from experience. It is a feature of a person's makeup and remains relevant to the determination of the appropriate sentence notwithstanding that the person has a long history of offending." 54There can be no doubt, of course, that judicial officers are entitled to take judicial notice of matters that are widely known. The Evidence Act specifically addresses that issue, particularly at s 144. In that regard, of course, it is a matter of which the Court can take judicial notice of the social circumstances of the community from which this offender comes. It has been the subject of a great deal of discussion in a range of places. 55The principles that emerge in decisions such as Bugmy, Fuller-Cust, Munda, Fernando and the like will continue to have currency, even if there be continual offending. The Court of Criminal Appeal itself has said on a number of occasions that there is not a "sunset" clause on relevant considerations in this respect and particularly this is what the High Court ultimately found in Bugmy. How could it be otherwise? Underlying factors that contribute to offending are not removed necessarily by intervening custodial sentences before particular offending. 56Community Corrections assessed that Mr Murray was suitable for "medium to high level of intervention" by it. He certainly needs intensive supervision whilst on parole, although that has been unsuccessful in the past. To come to grips with the contributing factors to his offending. Particularly his reckless and frequent use and abuse of alcohol and drugs, that has, as his criminal history makes clear, particularly led to acts of violence, usually in a domestic situation. 57Of course it is common knowledge that people such as Noel Pearson and Professor Michael Dobson have on a number of occasions reflected upon the concern about the incidence of domestic violence within Aboriginal communities. They have particularly called upon Aboriginal men and elders to take responsibility for their actions. This offence, of course, is not a domestic violence offence. It is a case of two men in a sense taking the law into their hands to address a grievance held by at least one of them against the victim. Whilst this prisoner apparently knew Mr Beattie he had no grudge against him, as I understand the evidence, and really had no reason to be involved other than whatever loyalty he had to Mr McGrath. 58I accept in the assessment of the objective facts, however, that his contribution to the level of violence, such as it was, was minimal. That having been said it is the case that this is a matter where, in the context of general sentencing principles, without regard to s 21A(2) Crimes (Sentencing Procedure) Act, two offenders took the law into their hands in the metaphorical sense, if not the literal sense. 59The other aspect of this matter arising from the aggravating factors particularised under s 21A(2), is that the offence was committed in the home of the victim and that is an identified aggravating factor under that particular provision. 60The offender's criminal history understood in the context that I have just earlier outlined by reference to principle is still a lengthy one, going back to the Children's Court, reflecting the dysfunction and dislocation of his upbringing. It reports that the first time he appeared at the Children's Court he was only aged ten years of age. This is a very very sad situation which may highlight the extent of his disadvantage. I have little doubt that he was socialised at a young age in a manner that made him accept some aspects of anti-social behaviour, including acts of violence and drug abuse, as accepted norms. 61However, in fairness, although he appeared in the Children's Court in 1984 for the first time and had many appearances in the Children's Court and the Local Court, his first conviction as I calculate it for assault was in 1995 when he was 22. He has a conviction for robbery in 1998. Thereinafter there are a large number of findings of guilt for assault occasioning actual bodily harm, stealing from a person, accessory after the fact to robbery, common assault, contravening apprehended domestic violence orders and the like, for which he has been variously imprisoned or given terms of imprisonment that have been suspended. I note in 2008 a suspended sentence was revoked and he was ordered to serve the 18 months imprisonment with a non-parole period of 6 months, by committing a further act of contravening an apprehended violence order. I hasten to say that the offending with which I am concerned is quite distinct from his course of conduct in a domestic situation. 62In recent years there has been an increasing intensity of offences of violence, either assault occasioning actual bodily harm, contravening apprehended domestic violence orders, common assault and the like. There is no suggestion in the record that the prisoner's previous convictions for assault involve him being hired to provide muscle for others to address their grievances. He does, however, have an unenviable history of violence, much of which has been directed at his partner, or his then partner, as I would understand the record. 63In sentencing the offender I have been provided with the victim impact statement provided by Mr Beattie and I take it into account in accordance with the legislation. However, there are a number of matters particularised in that victim impact statement that go outside the facts alleged by the Crown and the Crown has indicated that I should pay no heed to matters that fall outside the statement of facts. 64I accept, of course, that Mr Beattie no doubt was quite shaken by the assault given the fact that it was committed in his home and I accept that he may, for a period of time after that, have maintained some heightened vigilance. 65In the submissions from learned counsel for the prisoner I had something of a lengthy debate with him about aspects such as the discount to be given to the prisoner for the plea of guilty and of course the relevance of Fernando principles although that was not a matter upon which we dwelt. 66I also take into account the submissions put on behalf of the prisoner in respect of the relevance of the fact that the offence with which I am concerned, if dealt with summarily, carries a maximum penalty as a jurisdictional limit of two years imprisonment. I appreciate the prisoner did not have the opportunity to plead to this matter at the Local Court. He was not charged with this matter. The reason for that, it is clear, was because he was charged not just with assault occasioning actual bodily harm but the more serious charges to which I earlier referred. However, the relevance of the maximum penalty for an offence if dealt with summarily has been discussed in a number of authorities. Counsel took me to some extracts from a practice and I am mindful of judgments such as Doan. 67As I have said earlier, I accept the social context of the prisoner's upbringing as a relevant matter and I have taken it into account. However, bearing in mind his criminal history does not entitle him to any particular leniency, fully understood as I said in the wider context, bearing in mind the time that he has been in custody and his conduct since he was originally granted bail in relation to this matter, having regard to the maximum penalty of the offence in the context of the provisions of s 5 Crimes (Sentencing Procedure) Act, I can do nothing else other than impose a term of imprisonment. 68I have clearly had regard to the terms of s 3A Crimes (Sentencing Procedure) Act and I need not reiterate the various matters sometimes referred to as "guideposts" pointing in opposite directions, as was the expression used in the High Court judgment of Veen (No.2) from 1988. 69I have determined in this matter that there are special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. I realise the prisoner has had many opportunities to be released early on a finding of special circumstances. But I still feel that notwithstanding his slips before it is to his advantage and the community's advantage, in the manner discussed by Wood J in Blackman and Walters, that he continue at least at this point to have that advantage. But the truth of the matter is he may get to the point one day when courts will just stop fixing non-parole periods altogether. 70In relation to the matters that arise under s 21A(3) I have concluded that the injury and loss suffered by the victim was not substantial. I accept the plea of guilty as a mitigating factor. The prisoner has expressed remorse, not expressed in a timely fashion. But I am prepared to accept that as a mitigating factor of some small measure in this matter. Of course his prospects of rehabilitation and his likelihood of re-offending are matters about which I cannot make a positive finding on balance in his favour. That would not be a reasonable conclusion in light of his past performance. 71As I said at the outset, I have ultimately determined in the context of the maximum penalty the starting point should be 20 months imprisonment with a 20% discount. The sentence imposed should be 16 months imprisonment. The sentence shall date from 24 December 2013 for the reason that I have given. I am mindful of the fact, as I said earlier, the prisoner is currently serving the balance of parole, however this matter does not involve any particular breach of conditional liberty as I understand it. I am mindful of the decision of Simpson J in Callaghan from 2006 but I am also mindful of the terms of s 47 Crimes (Sentencing Procedure) Act and the terms of that provision. 72In the context of this sentencing exercise that means that I cannot prospectively fix a sentence from today's date because of the terms of s 47 and the cases that have interpreted it. I have decided in any event to backdate the sentence so that I can give full effect to the time spent in custody. As I have earlier said the submissions made by learned counsel for the prisoner were quite proper and appropriate in assisting me in that regard. 73In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a total sentence of 16 months imprisonment. I fix a non-parole period in relation to that sentence of nine months. That term of imprisonment will commence on 24 December 2013 and will expire on 23 September 2014. I direct that you be released to parole on that date. Do you understand that? 74OFFENDER: Yes. 75HIS HONOUR: Mr Crown any technical matters from you? 76CREASEY: No your Honour. 77HIS HONOUR: Any technical matters from you Ms Pettet? 78PETTET: No your Honour.