District Court New South Wales Medium Neutral Citation: R v Jeremiah [2015] NSWDC 316 Decision date: 28 August 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: For the offences of wounding with intent to cause grievous bodily harm and entering a building with intent to commit a serious indictable offence in circumstances of aggravation, an aggregate sentence of imprisonment of 6 years with a non-parole period of 3 and a half years. Form 1 taken into account. Catchwords: CRIMINAL LAW – Sentence – particular offences – offence against the person – wounding with intent to cause grievous bodily harm – victim wounded with hammer – serious injuries requiring surgery – property offence – aggravated enter building with intent – gravity of offences – not far below the middle range of objective seriousness – relevant factors – youth of offender – 18 years old at time of offending – unstable childhood – diagnosed psychological conditions - aggravating factors – offences committed whilst on probation – offence committed in the home of the victim – prior criminality – record includes offences of violence and property offences – prospects of rehabilitation guarded – consideration of competing purposes of sentencing - little weight given to unverified expression of remorse - pleas of guilty entered at different times – discounts of 25% and 10% - special circumstances for adjusting ratio between head sentence and non-parole period – youth of offender – need for assistance upon release on parole – common assault on Form 1 taken into account Legislation Cited: Crimes Act 1900 (NSW), ss 33(1)(a), 61, 111(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss, 3SA, 32, 53A Cases Cited: Adams v R [2011] NSWCCA 47 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Porter [2015] NSWCCA 59 Category: Sentence Parties: Regina (Crown) Moromi Jeremiah (Offender) Representation: Counsel: M Paish (Crown) R Munro (Offender) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) J Harb, Ly Lawyers (Offender) File Number(s): 2013/290430 Judgment 1. I am sentencing a young man who has committed a particularly serious crime and with it another serious crime. It is not surprising that the purposes of sentencing point in different directions in this case. One of the reasons is that this young man has a particularly deprived background. I should first specify the crimes that I am sentencing the young man for. I will just suspend my reasons there. HIS HONOUR: Moromi Jeremiah, I am sentencing you in a moment, or not in a moment, shortly. You probably know that what I do is talk first about the case, about your case and that is going to take about 30 or 40 minutes of talking about your case and then I announce the sentence at the end. Do you understand that? OFFENDER: Yes sir. HIS HONOUR: That is because I have to give reasons. You have committed a serious crime, a couple of serious crimes, and I am taking the step of sending you to gaol and so I have to give reasons for that and that is what I am doing now. I do that first. 1. The particularly serious crime is one of wounding someone with intent to cause grievous bodily harm. That is an offence against s 33(1)(a) of the Crimes Act 1900 (NSW). Parliament regards that as so serious that it has fixed a maximum of 25 years imprisonment to that crime. Not only that, Parliament has fixed a standard non-parole period of seven years to the crime. The second offence, which was committed on the same occasion, is the crime of aggravated entering a building with intent. That is an offence against s 111(2) of the Crimes Act 1900. Parliament regards that as a serious crime as well and has fixed a maximum of 14 years imprisonment to that crime. When I am sentencing him for the second crime of aggravated entering with intent, the offender, whose name is Moromi Jeremiah, has asked me to take into account an offence of common assault which was committed on the same occasion. Common assault is an offence against s 61 of the Crimes Act 1900. I will take that into account at the time of sentencing him for the entering the building with intent and I sign the document under s 32 of the Crimes (Sentencing Procedure) Act 1999 certifying that I will take it into account. 2. I should begin with saying what happened when Moromi Jeremiah committed these crimes. It is set out in exhibit A which was tendered by Mr Paish, the Crown Prosecutor who appeared in the sentence proceedings. It was the afternoon of 25 September 2013. Garry Green was returning home to his unit in Blacktown. As he walked towards the unit, he was confronted by Moromi Jeremiah. Moromi Jeremiah was holding a hammer in his hand. He demanded to be let into Mr Green's unit where he lived with his brother, Michael Green. Moromi Jeremiah was living in another unit at the same complex at the time. They went to the door of the unit where Mr Jeremiah "opened the screen door which was closed but not completely shut. The front door was open." That action amounted to the aggravated entering the building with intent. 3. Moromi Jeremiah then "wrapped his left arm around Garry Green's neck area in a headlock.". He walked down the hallway still holding Garry Green in a headlock and then pushed him to the ground as they entered the lounge room. That is the assault which I am taking into account. 4. Michael Green, who is the victim of the crime I am about to describe, was sitting on the lounge with a couple of other people. Moromi Jeremiah approached him. Michael Green went to stand up but before he could Moromi Jeremiah "commenced hitting the victim with the hammer. The offender raised the hammer above his head and swung it at the victim, striking the victim to the head and body a number of times. During the assault the offender said words to the effect, 'You snitched on Eric, you fucking snitch.'" During the violence a coffee table was broken but Moromi Jeremiah "continued to assault the victim with the hammer, hitting him a number of times on the legs with it." He stopped a short time later and then left. He was arrested shortly afterwards. 5. The victim was taken to Westmead Hospital. Included in exhibit A is a report from the doctor who treated him. The report said that he had a "4cm linear wound over vertex at scalp". Michael Green was also wounded over his flank which breached the skin into the abdominal cavity. He also had a wound to one of his upper arms. The doctors administered a CT scan to his abdomen "which showed bleeding from the kidney and possible damage to the ureter." He "also had bleeding from the spleen." In addition the victim "had blood in the urine and required an in-dwelling urinary catheter". He was operated on the day after the assault and a stent was put into his ureter. He needed "daily blood tests to check for ongoing blood loss from the damage to the kidney and to the spleen." The report said that he "sustained deep cuts to the head". These "required stitches in the emergency department." Fortunately a CT scan of the brain was normal and his "prognosis for recovery" was described as good. The doctor expected a full recovery once the stent was removed. There are photographs of the injuries to Michael Green depicting injuries in his hip area and bruises on his leg and arms. In fact there are injuries to his left arm and to his torso. It was a vicious and very serious attack. 6. It is important for a judge in sentencing an offender to also refer to and take into account the personal circumstances, positive and negative, of the offender. One important factor is obviously an offender's criminal record. In this case Moromi Jeremiah - who is still only 20 and was not even 18 and-a-half when he committed these offences - has a significant criminal record already. He has two offences for robbery in company, committed in 2008 and 2009. In 2009 he committed an assault occasioning actual bodily harm and in 2011 he was engaged in two affray offences. In 2010 he committed a break enter and steal and he has a number of offences for resisting police in the execution of their duty. Most of these offences were dealt with by the Children's Court. 7. In addition, in this case there is a detailed psychological report from a registered psychologist, Mr Chafic Awit, dated 20 August 2015. The report is unverified. By that I mean the history taken by the psychologist is not backed up by any sworn or affirmed evidence. Nevertheless it seems to me to be consistent with the criminal record of Moromi Jeremiah. The psychologist says this about the offender's childhood - "Mr Jeremiah has described an unstable childhood. Mr Jeremiah advised that as far back as he could remember he was the victim of both physical and verbal abuse inflicted upon him by his mother. Mr Jeremiah advised that he does not have a close relationship with his mother, and that whilst growing up she worked as a drug dealer to support her own addiction." She often blamed him for things going wrong. Moromi Jeremiah met his own father only once when he was 12 and went on to tell the psychologist "that his mother had a string of abusive boyfriends that would live with them from time to time. Mr Jeremiah further advised that he was physical[ly] abused by many of his mother's boyfriends." He went on to say that he was "often the victim of physical and verbal aggression at school." When he told his mother she told him that he had to stand up for himself. When he did this at school and fought back he was suspended. This happened more than once and he "eventually enrolled in a Behavioural school in order to complete his Year 10 School Certificate." 1. Mr Jeremiah's mother sent him to Samoa to be disciplined by family members. "Mr Jeremiah advised that his uncle who was drunk at the time, and had ripped Mr Jeremiah's clothing off nearly sexually abused him. Mr Jeremiah advised that if it were not for his shouting, which brought other family members into the room, he would have been the victim of a sexual assault." 2. Mr Jeremiah started to drink alcohol when he was 12 and by 14 "he was abusing the illicit substance ice." 3. As I said, Mr Jeremiah was arrested on the day that he committed the offence, namely 25 September 2013, and has been in custody bail refused ever since then. In due course his sentence will date from then. 4. The psychologist noted that in custody Mr Jeremiah "has abstained from alcohol and illicit substances. He advised for the first time in a long time his mind is clearer and level headed. He expressed his remorse on a number of occasions within the session. He further advised that he had been physically assaulted on three occasions in prison. One assault led to him breaking his arm, however he did not feel safe reporting this, so he advised the prison guards that he had slipped." 5. The psychologist has diagnosed a number of conditions. One is attention deficit hyperactivity disorder, as well as an associated oppositional defiant disorder and a major depressive disorder, as well as anxiety. Obviously there is also a substance abuse disorder. None of that is surprising given Moromi Jeremiah's reported background. The psychologist offered the opinion that "Mr Jeremiah's aggressive behaviours appear to be a direct consequence of his psychological conditions. Clinically, Mr Jeremiah presents as a man with significant psychological issues stemming from his unstable childhood." The psychologist thought that the ADHD and oppositional defiant disorder "may have led to the offences before the court". He also expressed the opinion that "Mr Jeremiah's poor decision-making skills, impulsivity, and poor emotional regulation ability…has played a significant role in relation to the offences before the court." The psychologist set out a treatment plan at the end of his report taking into account that Mr Jeremiah may be in prison or may not be in prison. The psychologist added his opinion that a "lengthy custodial/harsh sentence at this stage is likely to cause further deterioration of Mr Jeremiah's condition, which in turn would likely make his condition resistant to treatment in the future." He also expressed concern that if in custody, "Mr Jeremiah will not receive the sufficient treatment required for his rehabilitation." 6. There are a number of factors pointing in different directions which are relevant in sentencing in this case. Moromi Jeremiah is a relatively young man. He committed these offences when he was just over 18 he is now only 20. Aggravating features are that he committed these offences when he was on probation for other offences committed when he was under 18. That is specifically mentioned as an aggravating feature in the Crimes (Sentencing Procedure) Act. He had also been on a Community Service Order. In addition, he has a criminal record involving violence. He has robberies in company, affrays and an assault occasioning actual bodily harm. I regard that as an aggravating factor. In addition the offence was committed in the home of the victim Michael Green. That is regarded by Parliament as an aggravating factor, understandably. Mr Green was at home relaxing with friends when he was violently attacked by an out of control man with a hammer. A further specified aggravating feature by Parliament is that a weapon was used. I put little weight on that specifically as an aggravating factor. Indeed I put no additional weight on it as an aggravating factor because it is difficult to envisage how a wounding can occur without a weapon. Nevertheless, looking at the offence generally I regard the nature of the weapon, namely a hammer, as significant as being relevant to the offence that was committed. 7. The injuries were serious. There was some debate between Mr Paish and Mr R Munro of counsel, who appeared for Mr Jeremiah in the sentence proceedings, as to how serious those injuries should be regarded. I need to make some kind of assessment of their seriousness. 8. The victim was hospitalised for a number of the injuries he sustained as a result of being bashed by the hammer. He sustained internal injuries and required surgery. I was directed to the Court of Criminal Appeal's decision in Adams v R [2011] NSWCCA 47. In that case the victim "was struck on the middle right finger, crushing the fingertip, smashing the bones and causing blood to come gushing from the wound". The victim was also assaulted "with a baseball bat to the top of [his] head" causing "a laceration to the scalp". Latham J, with whom Campbell and Price JJ agreed, described at [35] the injuries as follows - "The nature of the injuries was at the lower end of the spectrum comprehended by grievous bodily harm. As against that, the attack on Mr Butler was sustained, it involved blows with weapons to vulnerable parts of the body and it was committed in company. On balance, the offence moderately below the mid-range of objective gravity.". 1. I would regard this offence as falling below the middle of the range of objective seriousness but not far below that bearing in mind the number of blows, the fact that there were internal injuries and that surgery was required. 2. There are other factors which are personal to Moromi Jeremiah. Although the assertions in the psychological report are unverified they are consistent with Moromi Jeremiah's behaviour to date. I accept the psychological report and its diagnosis. They accord with common sense. 3. It is relevant to regard Mr Jeremiah as being immature. His behaviour was completely unacceptable and was committed by him as an adult, but as a very young adult. So far as his rehabilitation is concerned, I am quite guarded about that. It is good to learn that he has abstained from drugs and alcohol whilst in prison. That is consistent with there being no disciplinary reports for drugs or alcohol, although it must be balanced against the disciplinary reports for him being involved in two assaults. There was also some fighting, but as Mr Munro pointed out, one does not know who started the fights. It does not take into account self‑defence. Nevertheless, there are two assaults. 4. I take into account the psychologist's opinion about the impact of custody although, of course, the Corrective Services do as best as they can with the resources which they have to treat offenders for conditions which require treatment. I take into account the psychologist's opinion that the diagnosed mental health conditions - even though as Mr Paish observed they are more behavioural conditions - contributed to the offending behaviour. The fact that he had those conditions may mean that I can place a little less weight on general deterrence. 5. As I said at the commencement of these remarks, in sentencing somebody in a case such as this the purposes of sentencing tend to point in different directions. Section 3A of the Crimes (Sentencing Procedure) Act lists those purposes. It is obviously important in a case such as this that Moromi Jeremiah be adequately punished for a very serious crime. Other people must also be deterred, although slightly less weight is placed on that. But pointing in the other direction is personal deterrence which is important for Mr Moromi Jeremiah. By that I mean in the past he has committed offences of violence. This was an unprovoked attack on a man in the privacy of his own home and one of the purposes of sentencing Mr Jeremiah will be to stop him committing other crimes like that against members of the community. Indeed, one of the purposes of sentencing is to protect the community from the offender. Another important purpose is that Moromi Jeremiah must be made accountable for his actions. It is completely unacceptable in the community that a person can behave like Moromi Jeremiah did in entering another man's home and attacking him with a hammer regardless of the motive that he had for doing it. I must recognise the harm done to the victim, Michael Green, in the sentence which I impose. I must also take into account the need for rehabilitation for a young offender such as Moromi Jeremiah. 6. On the other hand I need to take into account Moromi Jeremiah's own personal background. In Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 the Chief Justice and Hayne, Crennan, Kiefel, Bell and Keane JJ at 594 ([40]) said the following - "The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way." I regard that observation as relevant to this case. I also accept what their Honours said at [43] that the - "[E]xperience 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 to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending." However at 595 ([44]), their Honours said the following - "An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." 1. That is what I mean in this case by the punishment I impose on Moromi Jeremiah needing to take into account considerations which point in different directions. There is a need to take into account his immaturity and his own personal background as contributing to the behaviour which he did. On the other hand it is important that he be punished for the crime which he committed and that the community be protected from him behaving in that kind of way. 2. Mr Munro made available to me some statistics produced by the Judicial Commission which I marked for identification 2. I must bear in mind that they represent a very narrow sample, being 14 cases. And as Mr Paish correctly pointed out, of those 14 persons who have pleaded guilty aged between 18 to 20, we know nothing about their criminal records. 3. Mr Jeremiah has, through his psychologist, expressed remorse. I put little weight on that. It was not verified in evidence but I do take into account that he has pleaded guilty which is some evidence of remorse. It is not as strong as it could be. 4. Moromi Jeremiah pleaded guilty to the more serious offence of wounding with intent what is agreed was a very early opportunity. There is some dispute as to the formalities involved as to when the plea was entered but I propose to allow him the appropriate maximum discount of 25% on the sentence. That means in due course when I come to sentence him for that offence it will be reduced by 25% to account for the fact that he pleaded guilty thereby saving expense to the justice system and not requiring the victim to give evidence in a defended trial. The plea of guilty to the aggravated entering the building with intent was not forthcoming until a later time and I propose to accept Mr Paish's submission that an appropriate discount for that sentence will be 10% which I will allow shortly when I sentence Mr Jeremiah. 5. It is agreed that the intention of Moromi Jeremiah in entering the building was no more than to intimidate the victim. In other words, I do not find that he entered the building with the intention of inflicting grievous bodily harm. That intent developed when he attacked the victim inside. There are, I accept, special circumstances for adjusting the normal ratio or standard ratio between a non-parole period and a parole period. In due course I will specify those and make the allowance. 6. I have taken into account the sentences which were imposed in two cases which Mr Munro pointed to me. One was Adams that I have referred to and the other is R v Porter [2015] NSWCCA 59. Bearing in mind where the crime of wounding with intent to cause grievous bodily harm lies, so far as objective seriousness is concerned, and bearing in mind the aggravating factors, I would regard an appropriate sentence for that crime as being one of seven years imprisonment. Bearing in mind the factors relevant to the other offence including the fact that I take into account the assault when sentencing him for the entering with intent, I would regard an appropriate sentence as being one of four years imprisonment. In each case I also bear in mind the maximum sentences which Parliament has fixed for those crimes. 7. It is here that I allow the discounts for the plea of guilty entered by Moromi Jeremiah. That means that the seven year sentence for the wounding will be reduced by 25% so that the sentence would be five years and three months imprisonment. I would reduce the four years sentence to one of 43 months rounded off to three and a half years imprisonment. I would regard it as appropriate to accumulate the sentences somewhat because they are different crimes and I need to take into account for the entering the building that the assault which was inflicted on Garry Green, a different victim. I would be inclined to accumulate the two sentences by some nine months so that the total sentence I would have imposed for the two crimes would be six years imprisonment. 8. Normally for a sentence of six years imprisonment, Parliament envisages that the non-parole period - the period that the offender must spend in gaol - would be 75% namely, four years and six months. However Mr Munro has argued that there are special circumstances for increasing the parole period in this case and Mr Paish acknowledges those special circumstances. 9. The psychologist has set out a treatment plan. The special circumstances which I regard as important are these. Moromi Jeremiah is still a young man and there needs to be an opportunity for him to be integrated back within the community with the appropriate psychological and psychiatric support to deal with his substance abuse issues and the issues which come from his childhood. It is encouraging that he has already detoxified during the last two years that he has been in prison. I would regard it as appropriate to fix a non‑parole period in this case of three and-a-half years, which means that the time spent on parole will be two and-a-half years. 10. I also regard it as appropriate to fix one sentence, namely an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In other words instead of fixing two sentences which I would accumulate to effectively be a sentence of six years imprisonment, I will aggregate the two sentences and fix one sentence of six years imprisonment with a non‑parole period of three and-a-half years. 11. I fix a non‑parole period of three and-a-half years imprisonment. It commenced when you went into custody on 25 September 2013 and it will expire on 24 March 2017. The balance of the term is two and-a-half years commencing on 25 March 2017 and expiring on 24 September 2019. The first date on which you will be eligible for parole (which is fixed by the Parole Authority) is 24 March 2017. HIS HONOUR: What are your instructions, Mr Harb, so far as the psychological report is concerned? HARB: Would your Honour allow me-- HIS HONOUR: Yes. Yes. HARB: I have instructions for the report to be made available. HIS HONOUR: It can be made available? That's a good idea. Yes. It's going to be helpful to him. I will direct my associate to send to Corrective Services a copy of exhibit 1. Now Moromi Jeremiah you have received a six year prison sentence for both crimes. Six years. It commenced when you went into custody, which was a good idea for you not to apply for bail, not that you would have got it but you started your sentence nearly two years ago, 25 September 2013. The overall sentence will finish six years afterwards on 24 September 2019. That's when your sentence finishes. However you are going to become eligible for parole after three and-a-half years and that date comes up on 24 March 2017. The Parole Authority assesses whether you get parole or not. I don't order that. Obviously they'll take into account your behaviour in prison and all the other things that they take into account. I've regarded your parole period as two and-a-half years as being appropriate, instead of the normal amount which would be one and-a-half years, for the reasons that I've given. Do you understand that? OFFENDER: Yes sir. HIS HONOUR: All right. Good luck. OFFENDER: Thank you. HIS HONOUR: Thank you. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2015