R v Colin Robert Debrincat [2015] NSWDC 290

District Court New South Wales

Medium Neutral Citation: R v Colin Robert Debrincat [2015] NSWDC 290 Hearing dates: 24 November 2015 Decision date: 01 December 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Custodial sentences imposed. For orders see [27] Catchwords: Aggravated robbery; reckless wounding; sentencing of forensic patient Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions) Act 1990 Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194 Category: Sentence Parties: Director of Public Prosecutions (Crown) Colin Robert Debrincat (Offender) Representation: Counsel: A Tillers (Crown) J O'Sullivan (Offender) File Number(s): 13/34947813/29854613/335735 Publication restriction: Nil

REMARKS ON SENTENCE 1. The offender is to be sentenced for two offences. The first is an offence of aggravated robbery pursuant to s 95(1) of the Crimes Act 1900. That offence has a maximum penalty of imprisonment for 20 years. The offender was committed for sentence on that charge on 29 August 2014 from Gosford Local Court. 2. On 24 November 2015, the offender entered a plea of guilty upon arraignment to a charge pursuant to s 35(4) of the Crimes Act 1900 of recklessly wound Raymond John Neil on 28 October 2013 at Silverwater. That offence carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years.

Circumstances of the offending 1. The first offence pursuant to s 95(1) of the Crimes Act occurred on 17 January 2002 when the accused struck a security guard outside a bank in Haymarket, Sydney, took the security guard's Smith & Wesson .38 revolver and escaped. The victim was treated for bruising and suspected head injuries, but suffered no permanent injuries. 2. The Crown bundle (exhibit A), included a statement of agreed facts as to the second charge. As at 28 October 2013 the offender and Mr Neil (the victim) were in remand custody at MRRC and both worked in the Y unit of the correctional facility. At approximately 7.45am on that day, the offender and the victim were seated across a table from each other. The offender got up from the table and walked away and a short time later the victim felt an immediate pain to the front of his neck and looked down and saw a large amount of blood. He turned around and saw the offender standing in front of him holding a Stanley knife in his hand. The victim tried to stem the flow of blood and then observed the offender running at him with the Stanley knife held out in front of him, that is, with the blade directed at him. The victim ran towards the back of the workroom and eventually correctional officers intervened and the offender was cautioned, arrested and conveyed into police custody. 3. The Crown bundle included the criminal antecedents of the offender which included a number of offences involving violence. 4. The offender had been in custody following an arrest on charges of murder and robbery since 3 October 2013. On 28 July 2015, he was found not guilty in the Supreme Court of New South Wales of murder by reason of mental illness, and sentenced to become a forensic patient. The orders made by Mathews AJ on 28 July 2015 were as follows: 1. "Verdict of not guilty by reason of mental illness. 2. Order that the offender be detained at the MRRC at Silverwater or at such other place as may be determined from time to time, by the Mental Health Review Tribunal, until released by due process of law. 3. Direct the Registrar of the Court to notify the Minister for Health of this Judgment and order. 4. Direct the Registrar of the Court to notify the Mental Health Tribunal of this Judgment and order and to provide to that Tribunal the transcript, exhibits and reasons for the verdict and orders." 1. The offender was therefore on remand in respect of those charges when the reckless wounding offence was committed on 28 October 2013. 2. The offender relied on a very detailed report of Professor David M Greenberg dated 28 May 2015 (exhibit 1). Professor Greenberg recorded a history of the offender obtaining a gun in 2002, after he assaulted a security guard in the City of Sydney. He secreted the gun until October 2013 when he used it to shoot a resident of housing commission premises where he was living. As a result of that incident, the offender was charged with murder. The offender had been diagnosed with schizophrenia in 2000 and treated with anti-psychotic medication. After 12 months he moved to the Central Coast and his psychiatric care was referred to his general practitioner. His medication was gradually stopped in the year 2007, following which, he was not undergoing any psychiatric treatment. 3. In respect of the subject offence, Professor Greenberg took a history that the offender claimed that the inmate was "twiddling his thumbs" and made him "feel uneasy". He claimed that the inmate was threatening him. 4. Professor Greenberg set out the offender's family and personal history, as well as his drug and alcohol history. That involved starting to smoke cannabis at aged 15 years and experimenting with heroin at 20 years of age, cocaine at age 40 years, and amphetamines. 5. Professor Greenberg also outlined in detail the offender's treatment by Justice Health. He was transferred to the Long Bay Prison Hospital on 20 July 2014 as a forensic patient under the Mental Health (Forensic Provisions) Act 1990. On 6 November 2014, a Forensic Community Order was issued by the Mental Health Review Tribunal. The offender was subsequently transferred to the Hamden Unit at the MRRC at Silverwater. Professor Greenberg was of the opinion that the offender had been suffering from Paranoid Schizophrenic Disorder ("PSD"). That disorder had become chronic, however, Professor Greenberg opined that the offender was fit to plead and to stand trial. 6. As at the time of the alleged offence, Professor Greenberg was of the opinion that the offender was suffering from a disease of the mind, namely, a chronic PSD. As a result, he was labouring under a defect of reason and had a defence of mental illness available to him with regard to the charges of murder.