District Court New South Wales Medium Neutral Citation: R v CHANDLER [2014] NSWDC 389 Hearing dates: 7 November 2014 Date of orders: 05 December 2014 Decision date: 05 December 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Convicted: Sentence to a term of imprisonment of 7 years with a non-parole period of 3 years and 3 months. Catchwords: CRIMINAL – Sentence, armed robbery, historical offence, DNA evidence, offending occurring between two other offences for which the prisoner is already sentenced, totality of sentence, taking into account time already served in custody. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: Cahyadi v The Queen [2007] NSWCCA 1 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 16 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Hammoud [2000] 118 A Crim R 66 R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v MMK [2006] 164 Crim R 481 R v Z [2006] NSWCCA 342 The Queen v Martin [2014] NSWCCA 283 Veen (No.2) v The Queen [1988] HCA 14 Category: Sentence Parties: Regina Benjamin Chandler - Offender Representation: Counsel: Ms S Herbert – Crown Dr J Berwick - Offender File Number(s): 2012/289299 Sentence 1. HIS HONOUR: Benjamin Chandler appears today for sentence, having been found guilty by a jury of a charge alleging that he, on 5 April 2009, at Randwick, robbed Guyan Thambugala of his personal property whilst armed with an offensive weapon and at the time of the robbery he wounded that person. This offence carries a maximum penalty of 25 years' imprisonment. There is a standard non parole period of seven years prescribed, pursuant to the relevant provision in Pt 4, Div 1A, Crimes (Sentencing Procedure) Act 1999, hereinafter referred to as 'the Act'. Of course the maximum penalty for the offence is prescribed in the Crimes Act. 2. The prisoner was charged in relation to this matter a number of years after the crime was committed, having been identified by the use up to date or DNA technology after a "cold hit" had occurred upon re examination of exhibits relating to the case. Particularly the knife that was clearly used in the attack or the stabbing of the victim. 3. The prisoner at the time of the match being recorded was already in custody, serving terms of imprisonment in respect of offences committed by the prisoner over a period of time, between 22 March 2009 and 17 April 2009, the details of which I will refer to in a moment. The prisoner had in fact been arrested and placed in custody on 22 April 2009 in respect of a number offences, including some of the offences for which he was subsequently sentenced. Ultimately, when he finally was sentenced at the Local Court and, more particularly at the District Court, in relation to other offences, the prisoner was sentenced after conviction in respect of four offences of what could be described generally as armed robbery or like offences. With a matter described by the Court of Criminal Appeal as an, "attempted carjacking", included on a Form 1, taken into account in respect of one of those offences. 4. The Crown sought at the trial of this prisoner to rely upon the facts of some of those matters for which the prisoner had been previously sentenced, to establish a relevant tendency that the Crown sought to place before the jury in aid of proof of guilt of the prisoner of the current charge. I do not propose to go through the history of the litigation before me but I was provided with a number of details in relation to at least some of those earlier matters. 5. In respect of those offences to which I have just referred and for which he has been previously convicted, the prisoner pleaded not guilty to three offences, which included an offence of assault with intent to rob with an offensive weapon, for which he was sentenced to three years' imprisonment, commencing ultimately on 22 April 2009, an assault with intent to rob in company, for which he was sentenced to three years six months' imprisonment commencing on 22 November 2010, that sentence concluding - according to the Court of Criminal Appeal judgment - on 21 July 2013 and an offence of armed robbery for which he was sentenced to four years' imprisonment, commencing on 22 January 2011 and concluding on 21 January 2015. 6. In respect of the two sentences first imposed in time, no non-parole period was fixed for obvious reasons. In relation to the third offence in time, a non-parole period of two years concluding on 21 January 2012 was fixed by the sentencing judge. The offence of armed robbery carried a maximum penalty of 20 years' imprisonment. 7. Although he pleaded not guilty to those charges, he also, at the time of sentence by the sentencing Judge, was convicted after a plea of guilty and sentenced in respect of an offence of armed robbery for which he received a sentence of five years' imprisonment commencing on 22 January 2012 and concluding on 21 January 2017, with a non-parole period of two years and six months. That non-parole period was fixed to expire on 21 July 2014. Thus, the prisoner, in the period of time up until the present, has been in custody serving a term of imprisonment which might be described generally as the "balance of parole", although his parole obviously has not been revoked, arising out of the orders made by the judge at first instance. 8. In respect of the last offence in time as far as sentences are concerned for which the prisoner was sentenced to five years' imprisonment a matter was taken into account on a Form 1. The four matters for which he was sentenced by his Honour occurred between 22 March 2009 and 17 April 2009. Thus, the matter with which I am concerned occurred roughly in the middle of the course of offending that has already been dealt with. 9. I have referred to the orders made by the sentencing judge. I have read the judgment of the Court of Criminal Appeal. From what I read of the judgment of the appeal by the prisoner against the severity of the sentences that were imposed and by the Crown against inadequacy of sentences, that judgment being decided by the Court of Criminal Appeal on 28 June 2012, (R v Chandler; Chandler v R [2012] NSWCCA 135), at the time of being sentenced by the sentencing Judge there were other offences. I assume related offences for which the prisoner was sentenced, including an offence of driving a conveyance without the consent of the owner for which he received one year's imprisonment and another offence of receiving stolen property for which he received six months' imprisonment, which sentences were respectively concurrent with order made in relation to the more serious offending. The facts in relation to the armed robbery or armed robbery-style offences or attempted robbery in company offence are set out in the judgment of the Court of Criminal Appeal at [19] - [26] of the judgment to which I have referred. 10. The effective sentence imposed upon him by the sentencing Judge, and not disturbed by the Court of Criminal Appeal, was seven and a half years' imprisonment with a five year non-parole period dating from July 2009. The sentence imposed by the learned sentencing Judge represented a finding of special circumstances, both by reason of accumulation of sentences and other matters that are relevant to a determination of special circumstances pursuant to s 44 of the Act. 11. I note for the purposes of the sentencing that I am required to do on this occasion, that the sentences imposed by my colleague on the District Court, the subject of the appeal to the Court of Criminal Appeal, commenced in July 2009. However, in fact the prisoner had been in custody since his arrest on 22 April 2009. The three months between the time he came into custody and the commencement date of the sentences for the armed robbery were taken into account by the learned sentencing judge. Those three months had in fact, if I might use the expression, been taken up in part by sentences imposed in the Local Court in respect of summary stealing matters which were committed in April 2009 and for which the prisoner received, as I understand it, a total sentence of five months' imprisonment. Thus, the sentences for the other robbery offences were partially accumulative upon those Local Court sentences. 12. In reality, the effective sentence the prisoner has been serving up until the present time, on my calculation, was seven years and nine months with an effective non-parole period of five years and three months. As I will demonstrate by my assessment of the sentences to be imposed, I have taken into account all the time that has been served in custody for the purposes of calculating an appropriate commencement date for the sentence I impose, and for calculating what I regard as an appropriate non-parole period, as the law would require me to do. 13. In sentencing the prisoner I am required, having regard to those previous sentences and the appropriate penalty for this matter, to endeavour to represent the totality of the criminality now known to the Court and also to give appropriate consideration to the fixing of an appropriate non parole period, particularly in the context of matters that are relevant to an assessment of 'special circumstances' pursuant to s 44 of the Act. I will come back to the issue of 'totality of criminality' and the principles that relate to that concept and how they reflect themselves in the orders I have foreshadowed to the prisoner. 14. The facts established by the Crown, in order to prove the guilt of the accused, are that the victim was at Randwick and parked his car in Silver Street, Randwick in order to go to an ATM of the Commonwealth Bank in Belmore Road, Randwick. After walking from his car to the ATM, which was around the corner from the intersection of those two streets or roads, and withdrawing money, he was walking back to his car when he saw two people standing near the rear of his car. One was obviously the prisoner; the other as I understand it was a female associate of the prisoner who was present or in some way connected with the prisoner's other offending in the period of time between 22 March and 17 April. Her situation, in fact, was the subject of some comment by the Court of Criminal Appeal in the context of a misconceived argument put to the Court about disparity in sentencing between this prisoner and that woman. 15. The victim was walking to his car when the prisoner asked the victim for the time. The victim realised that the prisoner was moving closely towards him, invading - if I might use my expression - his personal space and he started to run away. The prisoner told the victim that he had a knife and said the words, "I'm going to use it". The prisoner then attacked the victim, striking him on the head, knocking him to the ground and then striking him on the ground, where he slashed the victim with the knife that he was wielding and had threatened to use. This attack was a savage attack and the victim was fortunate not to suffer more serious injuries. In the darkness of the area, even allowing for street lighting and the close proximity of the bodies to one another, the use of a knife in those circumstances and the manner in which the prisoner used the knife were very dangerous indeed. 16. The prisoner told the victim that he wanted the keys of the victim's car, but the victim was able to throw the car keys away. The victim tried to grab hold of the knife to stop himself being injured further, but was unable to do so effectively. The prisoner ultimately ran away when other people approached. There were some civilian witnesses who saw various aspects of this matter. There is absolutely no need to analyse their evidence for the purposes of sentencing. The victim remembered the prisoner at one point using his foot when the victim was on the ground to roll him over. 17. Obviously when the prisoner could not get access to the keys and the car he sought other property of the victim and, in fact, the victim's wallet was taken out of his right hip pocket. In that pocket the victim had a number of credit cards and other forms of identification and a small amount of cash as well as a driver's licence. The taking of the wallet obviously was secondary to the primary desire of the prisoner to take the victim's car. I point out, by reference to the facts of other matters for which the prisoner has been sentenced, that there was a similarity in the modus operandi of the prisoner in this offence with other offences committed for which he has been sentenced. 18. The victim sustained injuries to his right thumb, his left wrist, his chest and his neck which were caused by the knife. The injuries to his right thumb and his left risk penetrated the dermis and the epidermis. A tendon in his right thumb was severed by the knife which required surgical repair, as did the injury to the left wrist. 19. The Crown has provided on sentence a number of reports primarily from Dr Stuart Myers, who is a hand and wrist surgeon, from a physiotherapy facility at Westmead Hospital and another private, as I understand it, occupational therapy organisation, also at Westmead. I have read through all that material. It confirms the detail of the injuries as they were treated. 20. The final report from the physiotherapist notes, after reporting upon various clinical observations, was that the victim had achieved "a good return of his right dominant and left non-dominant hand and upper limb function". He was continuing with a home exercise program for scar management bilaterally and his flexion was expected to continue to improve as scarring improved. He was independent in all activities of daily living and had returned to full duties at work. 21. The report of Dr Myers, in the last report by date, after consultations with the victim over obviously a period of some months at that particular time, noted the then limitations arising from the injury. He said it was very likely that there would be further increases in the range of motion of the thumb and that there would be some minor "permanent impairment". He said that sensory changes may improve over the next two years, but would never completely return to normal, and the victim who, as I understand it was a medical practitioner, was able to return to full duties. 22. I do not propose to go through the evidence in the trial concerning the description of the assailant and other matters that were raised at the trial. At the heart of the Crown case in proving the guilt of the accused was the fact that police, after arriving at the scene of this robbery, undertook a search and it ended up at the rear of domestic premises that faced Alison Road at Randwick, a relatively short distance from the scene of the attack. Consistent with the route that the attacker was seen to take when he fled. A knife was found that clearly was used in the attack and ultimately, over a number of examinations over a number of years, two DNA profiles were developed. The DNA profile of the accused was found on the handle of the knife and the DNA profile of the victim was located on the blade. 23. Close by to where the knife was found were found the contents, or some of the contents, of the victim's wallet. Clearly establishing that the attacker had been in the area. The location of those items from the victim's wallet, in close proximity to the knife upon which could be found the DNA profile of the prisoner, on its own clearly, in my view, established the link between the prisoner and the robbery. Whatever objection or point could be made or ought be made about the reliability of the finding of the DNA profile of the victim on the blade of the knife. I have already given a judgment in relation to the admissibility of that evidence. 24. The prisoner at the trial provided absolutely no answer to the power of the circumstantial case that linked him to the crime, choosing to rely upon some inconsistencies in description and what was claimed to be the unreliability of the findings in relation to the DNA profile on the blade of the knife. It is to be said, even making allowance for the evidence the prisoner has given, that the prisoner has shown very little, if any, remorse worthy of acceptance for his conduct. Although the jury, in determining the guilt of the prisoner, did not have the opportunity to consider the relevance of the other offences for which the prisoner had been proved to commit on occasions before the commission of this offence, it is clear from the circumstances of those other offences, that is, a consideration of the robberies committed either before or shortly after this event, that, as I said earlier the prisoner had some form of modus operandi of approaching people and attempting to rob them, including taking their motor vehicles from them. This particular offence, however, was the most serious of all those offences. 25. This offence in this context can be seen as neither uncharacteristic nor spontaneously committed, nor unpremeditated. I appreciate of course the prisoner had only a limited time to choose his particular victim on this occasion. But in the course of this matter, having regard as I say to the offending for which he is currently serving sentences, it is clear in my mind that he was on the lookout for someone who he could rob with a knife, being armed already with it, in order to obtain a motor vehicle and, if needs be, personal property. It was only a matter of happenchance that the prisoner did not obtain the motor vehicle of the victim because of his quick thinking and throwing away the keys. It was only a matter of happenchance that this poor victim was chosen. It is clear on the facts the prisoner was prepared to do whatever he needed to do to obtain his ends and clearly had no regard for the welfare of his victim or anybody else. He demonstrated that in the facts of the other cases. 26. I have had regard to the history of drug dependency and abuse of which the prisoner has spoken and which appears in the various reports that I have taken into account. But it appears to this Court, in the context of the circumstances of the other offending, that the taking of the motor vehicle, which was the prisoner's primary intention, had nothing at all to do or association with his design to obtain finance for his drug dependency. There is nothing concerning his subjective circumstances, particularly his drug dependency or use, which excuses or mitigates his conduct on this particular occasion. 27. At the sentencing proceedings, in addition to the Crown bundle and the report of Dr Myers, I had other evidence. I had an up-to-date psychiatric report relating to the prisoner from a Dr Dayalan, who gave oral evidence in relation to some contents of his report, a chronology, a report that had been previously prepared in relation to the other proceedings by Dr Andrew Ellis. I have the evidence of the prisoner. 28. The details of the prisoner's criminal history and the injuries of the victim I have already referred to. The precise details of the various sentences imposed upon the prisoner by his Honour Judge Armitage, the subject of appeal, are set out in the Court of Criminal Appeal decision that I have referred to at [13] - [15]. 29. In that judgment there is a survey of material that was available to the Court of Criminal Appeal and the sentencing judge, the subject of extensive comment by the Court of Criminal Appeal. The Court referred to the report that was available to the sentencing judge at those proceedings of Dr Ellis and another report that was available from Professor Greenberg who was a consultant to Justice Health. At [32] the Court extensively reported upon the contents of Dr Ellis's report. I do not propose to read the detail of that beyond pointing out in the judgment, quoting in full the relevant part of Dr Ellis's report setting out the analysis that he undertook, Dr Ellis said: "He (the prisoner) did not describe any psychotic symptoms (delusions or hallucinations) at the material time (of the offending) or in the months beforehand. The description of events in the attached fact sheets do not indicate behaviour that is suggestive of psychotic symptoms". 1. The same may be said of what is available from the evidence in this particular case. He went on to say: "It is likely that his ability to form an intention was impaired, but not totally deprived by the combination of substance abuse, personality disorder and possible ADHD at the index times. His ability to marshal impulses reflect on decisions problem solve and restrain anger would likely have been impaired if intoxicated and therefore untreated for his underlying psychiatric conditions. The ability to use those cognitive and emotional skills was not likely however to have been absent. He has significant experience of intoxication with substances including education regarding the effect of substance abuse while attending substance use rehabilitation and would have likely been able to foresee the effect of substance abuse on his mental state prior to engaging in that use". 1. The Court of Criminal Appeal noted in relation to this report and opinion that his Honour the sentencing judge at first instance, "interpreted that report as indicating an impaired ability on the part of the applicant to form an intention and to understand the effects of his actions at the time of his offending". 1. In other words, as the Court of Criminal Appeal pointed out, the opinion of Dr Ellis was, "due partly to the prisoner's intoxication by drugs (which his Honour accepted was not a mitigating factor on sentence) and partly due to his underlying mental illness". 1. The Court of Criminal Appeal ultimately did not hold that that opinion of the sentencing Judge was unreasonable. The opinion in the context of its acceptance by the Court of Criminal Appeal must have obvious weight in these proceedings. 2. Dr Greenberg's analysis was, as set out at [35]: "Diagnostically Mr Chandler has a history of polysubstance dependence associated with significant personality problems (personality disorder), he has a history of attention deficit hyperactivity disorder as a child and a history of anxiety and depression". 1. He went on to say, "Cognitively, Mr Chandler has the capacity to understand his actions and the rightfulness and wrongfulness of such actions. He continues to suffer from depressive and anxiety symptoms. He is currently under the care of Justice Health mental health services. He is currently receiving antidepressant medication and continues to be monitored for suicide risk". 1. The Judge's conclusion in relation to that matter is set out at [36]. His conclusion was that the prisoner from that opinion was, "substantially impaired by mental illness at the time of his offending, in relation to his ability to restrain the impulse to offend and form an intention to offend with full knowledge of his consequences". 1. There were some other comments made which I have taken into account set out in that paragraph. 2. It was noted by the Court of Criminal Appeal that it was concluded by the sentencing Judge that he had no reason not to accept Dr Greenberg's multiple diagnoses of mental illness. It also appeared to that judge that, "drug intoxication acted on these mental health problems to produce the offending, so that it was caused both by that intoxication and by those mental health problems". 1. He concluded, in the context of principles that are summarised in decisions such as R v Hemsley [2004] NSWCCA 228 at [33] - [36], in the judgment of Sperling J, and more recently, if I might refer to the decision published subsequent to his Honour's sentencing exercise of DPP v De La Rosa [2010] NSWCCA 194, particularly at [177] – [178], where a larger number of authorities and other matters are summarised by the then learned Chief Judge at Common Law 2. Judge Armitage held that a custodial sentence might weigh more heavily on the applicant because of his mental illness and that the mental "illness" of the prisoner affected the prisoner's moral culpability, and it was thus reduced. The same call for denunciation and punishment may accordingly be reduced. He concluded that the prisoner was "an inappropriate vehicle for general deterrence" although general deterrence obviously was still a relevant factor in that sentencing exercise. He concluded that the prisoner was not a danger to the community by reason of his "mental illness" and he also said that the conclusions of the psychiatrist did not support a conclusion that the prisoner was "a greater risk than the usual risk of reoffending because of his mental illness unless it is untreated". 3. The Court of Criminal Appeal concluded that the learned sentencing Judge was in error or had at least misinterpreted the evidence of Professor Greenberg that the prisoner could not receive appropriate treatment in custody. I have no evidence before me about that. However, ultimately their Honours in the judgment in the Court of Criminal Appeal did not demur to the findings of the Judge at first instance. 4. In relation to his Honour's findings at first instance and the survey of relevant authorities I note the observations of the Court of Criminal Appeal in the appeal in this matter set out [57] - [60] where their Honours extract from decisions such as Henry, the guideline judgment in relation to armed robbery, the 2002 judgment of Israil, the judgment of R v Z, a decision of the Court of Criminal Appeal from 2006 and, of course very importantly, the judgment of the High Court in Muldrock v The Queen [2011] HCA 39, various principles, relating to the sentencing of offenders suffering from what McClellan CJ at CL referred to in De La Rosa as "mental illness, intellectual handicap or other mental problems", in the sentencing exercise. 5. The Court of Criminal Appeal in the decision of Chandler noted of course that the sentencing Judge at first instance had recognised that the mental illness of the prisoner was not something that had just been diagnosed from the first time following his arrest and incarceration. The prisoner had been subject to "mental illness", as the Court of Criminal Appeal described it, of various types from an early age. This was well documented with many admissions to psychiatric hospitals and many treatments over a period of time. I note their Honours conclusions at [62] – [65] of the judgment. 6. They acknowledged the error in the analysis of Professor Greenberg's evidence to which I refer but, speaking for the Court, the lead judge in this matter, Hoeben JA, then of the Court of Appeal, said ultimately that their Honours could not find any patent error. 7. It is obviously the case when I am sentencing the offender, who has been in custody since the decision of the Court of Criminal Appeal in relation to an offence committed at the time of the other offending and which has received close analysis from my brother judge and also the Court of Criminal Appeal, that the findings of the Court of Criminal Appeal and the Judge at first instance must be accorded the appropriate respect in this sentencing exercise and are clearly very relevant. 8. To turn now to Dr Dayalan's evidence. He reflected upon the history of the prisoner which I need not recount, much of that is set out of course in the judgment of the Court of Criminal Appeal or in the judgment of Armitage DCJ which has been extensively quoted by the Court of Criminal Appeal. The doctor who prepared the fresh report noted the confirmed history of ADHD. He believed there was present, "A comorbid conduct disorder and substance misuse and presented with personality disorder with traits of borderline mood instability, poor impulse control, recurrence of harm/suicidal behaviour, history of unstable relationships, transient dis-associative/psychotic episodes and antisocial personality. Early adverse experiences were likely to have contributed to the development of maladaptive traits in his personality structure." 1. I note that, as part of the history of the prisoner, that the prisoner grew up in what would appear to be a secure family environment. My understanding of his background is that both of his parents are medical practitioners. But the significant and substantial mental disorders that he has suffered from since childhood have had an enormous impact upon his life, as his criminal history and his other life experiences have displayed. 2. The assessment by this doctor on 1 November 2014 was that the prisoner presented with anxiety and depressive symptoms and had a propensity to decompensate drastically in stressful situations. It was said that ongoing detention in the setting where he had been previously sexually and physically assaulted and the prospect of spending further time in custody had challenged his internal resources to cope with stress and this is manifested with repeated presentations to psychiatrists in a highly distressed state, particularly recently whilst in custody. 3. The doctor was of the view that the prisoner required a great deal of treatment and psychological counselling. He needed to engage in drug and alcohol rehabilitation and would benefit from what he described as "dialectical behaviour therapy". He described that, in his oral evidence, as being similar to cognitive behaviour therapy, about which a number of psychologists who prepare reports in this jurisdiction refer. He noted that. "Intervention claims to address emotional and behavioural dis-regulation (sic) and equip the individual with healthy strategies to deal with stress rather than resorting to self-harm and substance misuse." 1. He said the prisoner needed a multi-disciplinary approach. There were challenges to implementing such an effective programme within the correctional environment. However, I note the doctor expressed an opinion about the prisoner not being able to receive adequate treatment, which is contrary to the conclusion of Professor Greenberg, who is better skilled to form that opinion, also the subject of comment by the Court of Criminal Appeal. 2. In his oral evidence the doctor agreed with the findings of Dr Ellis's report from 2010. He said in cross-examination that therapy that he suggests, the dialectical behaviour therapy, would require six to 12 months of treatment with weekly sessions. 3. The prisoner gave evidence and said he was remorseful for what had happened, stating that he was remorseful for "hurting other people". He was challenged as to that by me because it was completely meaningless when one is talking about one victim. His evidence did not really seem to focus upon the particular victim with which he was concerned in this case. He told me that he, "did not plead guilty to the charge, because I did not have any recollection of what happened...I was psychotic at the time and that's the reason I went ahead with the trial". 1. I do not have any basis for concluding that he was psychotic at the trial and the report prepared by Dr Ellis relating to his reported mental state at the time of this very offending does not confirm that assertion by the prisoner. The prisoner told me in fact that the history he provided to Dr Ellis and Dr Dayalan and Dr Greenberg were correct. 2. He also told me he was willing to undertake any appropriate intervention, medical or psychological, that was required. He said he wanted to fix his life up. He said his parents were supportive of him but they have not made their way to court. They would provide him with accommodation. In fact, as I understand it, they had an apartment or a flat that they owned that could be made available to him and they had set that accommodation up for him in expectation he would be released to parole in July this year, which is now expired. 3. He was challenged about the support that was given to him by his family in cross-examination and it was pointed out to him that the current course of offending occurred at a time when he would have had that family support. He conceded that in 2009 he had inherited $60,000 from his grandmother. Apparently that did not stop him offending. Although it may well be that in the context of what I expect to be a lengthy and significant drug dependency that much of that money would have been spent obtaining drugs. 4. I took him to that part of Dr Ellis's report to which I have already quoted, there being no history in 2010 of delusions or hallucinations at the material time or in the months beforehand. He said in re-examination from his counsel that a couple of months before he came in to gaol, which was in late April 2009, he had been hearing voices from people who were plotting against him. He said those voices came from streets away and he did not have a clear recollection, however, of what he discussed with Dr Ellis. I am prepared to accept that, but I believe that Dr Ellis's contemporaneous record of what he was told by the prisoner is a very reliable history. In fact it was relied upon by the prisoner when he was sentenced by Armitage DCJ. 5. With regard to the prisoner's evidence, of course I do not reject all of his evidence. I can understand, in the context of the situation in which he finds himself, some prevarication about matters that are not entirely helpful and I accept, particularly after several years of sobriety in custody, that the prisoner is desirous to try and address the matters that he had been unable to address in the past. 6. In submissions I was taken to 'Pearce principles' (Pearce v The Queen (1998) 194 CLR 16, at [45]). It was submitted that there was substantial mental impairment, as has been accepted by the Court of Criminal Appeal. It was conceded that the offence with which I am concerned was the most serious both in terms of maximum penalty and in terms of the actions of the prisoner. It was said in the context of a "continuum of offences" that were closely aligned with his mental impairment and closely connected with his drug use. His account of his state of mind at the time reflected upon all of his criminality. In terms of the sequence of events was such that it would not require a substantial increase upon the sentences already fixed. 7. Although this was the most serious of all the offences that the prisoner committed, it was submitted that the Court "ought not separate this offence out, quite serious though it may be", and give a substantial accumulation on the basis that such increase would not reflect totality of criminality and that increase to be given should be marginal. It was submitted that I should accept that the prisoner was remorseful because he understood that he had adversely affected the lives of other people. 8. The Crown submissions were that I should take into account that he had been violent previously in his criminal history. That this was the most serious offence. The wounding of the victim was a serious wounding requiring ongoing medical treatment and the victim had been left with "permanent impairment". I have already cited the specific evidence on that matter. The Crown noted the facts of the matter and submitted there was some level of premeditation, having armed himself with a knife and having gone looking for a victim which is a submission I accept. 9. I was taken to the decision of the Court of Criminal Appeal which I have obviously already taken into account. It was noted that the Court had observed that the sentences imposed on him previously were "at the bottom of the range". However, it is to be also noted those parts of the judgment as to why that may be so, given what might be described as unusual features of the prisoner's mental state and its relationship to the offending. 10. The Crown and I had some discussion about the issue of whether the sentence should commence at a particular date. The Crown submitted that I should not commence the sentence before 21 July 2014 on the basis that that would mean that the prisoner would not have served any extra time in custody in relation to at least one of the offences for which the primary sentencing judge previously had imposed sentences, given the structure of the penalties imposed. 11. With regard to this issue of totality and criminality, noting all that has been put by the parties. I note the recent decision of the Court of Criminal Appeal in The Queen v Martin [2014] NSWCCA 283, decided on 2 September 2014. The judgment reflects upon a number of authorities well known to those involved in the criminal law. I particularly note the contents of para [24], particularly the passage from Cahyadi v The Queen [2007] NSWCCA 1, particularly at [27] - [28] where Howie J surveyed a number of principles arising from a number of cases, such as Holder v The Queen, the decision of Street CJ, from 1983, and the decision MMK [2006] 164 A Crim R 481. There is no need for me to repeat the full detail of that quote from that particular decision but the Court pointed out that there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue was determined by the application of the principle of the totality of criminality. "Can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partially accumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences." 1. The decision of MMK notes, amongst other things, a number of authorities dealing with the issue of totality of criminality. There may be a need for partial accumulation even when there are a number of crimes committed by the one criminal act. The Court noted that the extent to which a sentence is to be served can cumulatively with another sentence as an exercise of discretion upon which minds might differ; citing the well-known judgment of Hammoud [2000] 118 A CRIMR 66. That discretion is generally circumscribed by proper application of the principal of totality. 2. In the context of those various principles and that very learned discussion by Justice Howie, and of course the authorities and the discussions contained that he cites, I feel I should address one of the submissions put to me by the Crown. 3. The Crown made the submission to me, which I have checked against the transcript of the submissions, that if I was to backdate the sentence any further than 2014 then in relation to at least one of the sentences imposed by the judge at first instance no further time would be spent in custody. That may be so, but with respect it fails to recognise the different ways in which a Judge may give measure to "totality of criminality". 4. In this particular matter the Judge at first instance, Judge Armitage, when he sentenced the prisoner back in 2009 or 2010, partially accumulated every sentence upon the other. That is one way of giving effect to totality. Most of the accumulations were if I might use the expression "incremental" or not "significant". 5. If one is sentencing a person let us say for eight offences, there is no need to give eight partially accumulated sentences. You could end up with a total absurd sentence by approaching in that way. One might make three sentences concurrent, one with the other, and then make three sentences all of themselves concurrent one with the other, partially accumulative to a substantial degree upon the first group of sentences, and then impose a further partial accumulation for the other two offences. 6. Reaching a figure that represents the totality of criminality can be exercised in a range of ways. It might be thought, at first instance for example, that if one imposed in the example I have just given three sentences, each concurrent with the other, then the prisoner was not receiving any further penalty for particular offences within each group of offending. That fails to recognise the ultimate effect of the subsequent partial accumulations and what that means. 7. As the majority in Pearce v The Queen said, at the paragraph earlier cited, what the Court is concerned with is addressing the issue of totality by reference to the need for concurrency and accumulation to the degree that is essential to reflect the totality of the criminality. 8. At this stage I have read nothing in the decisions of the High Court of Australia or the Court of Criminal Appeal that says for the purposes of totality of criminality the Courts are to embark upon sentencing which is favourable in States of the United States such as Texas where one, as I understand it, is required, or may, just keep on accumulating sentences ad nauseam to the point where one reaches an absurd result. 9. Of course, that is not what the Crown suggested here. I fully appreciate that. But the point I make is that the fact that one of the sentences imposed by Judge Armitage may ultimately in reality be subsumed into the final order, does not reflect an inappropriate approach to the sentencing exercise in the manner that I have foreshadowed. 10. What I am required to do to the best of my ability is reflect the totality of the criminality. That is of the offence with which I am concerned in conjunction with the other offences noting all the other matters that are to be taken into account. Of course, it brings me back to what was conceded in submission in this matter, that this is the most serious of all the offences. 11. I appreciate in the context of the criminal history I have outlined, or is summarised in the findings of the Court of Criminal Appeal the prisoner's criminal history is not an aggravating factor under s 21A(2) of the Act. But the prisoner's criminal history, including those offences for which he was not then convicted at the time of the commission of this offence but for which he has been subsequently convicted, does not entitle him to any particularly leniency. 12. That having been said, if the issue of his mental disability or mental illness was not taken into account, bearing in mind he gets no credit at all for contrition or remorse for the reasons I have outlined, then the sentence I would imposing in relation to this offending at the present time would be substantially greater than the sentence I have foreshadowed and that should not be forgotten. 13. In relation to this sentencing exercise I am required to have regard to s 3A Crimes (Sentencing Procedure) Act and the varying purposes of sentence therein outlined. I am mindful of the fact as the High Court said in Veen (No. 2) in 1988 the purposes of sentencing that it identified, which were four of the seven or eight that now appear in s 3A, were "guideposts" that sometimes pointed in "different directions". 14. Whilst the general deterrence aspect of this sentencing exercise is present it is to some extent ameliorated. There is a need of course for some element of specific deterrence of the prisoner, but that is not exaggerated or emphasised or increased by reason of the prisoner's mental illness for the reason I have given. The prisoner is to be made accountable for his actions and adequately punished and denounced for his conduct. But I am also required to promote his rehabilitation because he will be returning to the community. 15. With regard to mitigating factors arising under s 21A(3), obviously they are very few indeed. The offence was premeditated but ultimately was not "planned" in the manner that the legislation has been interpreted by the Court of Criminal Appeal. The prisoner cannot call in aide his criminal history. As I said, that entitles him to no particular leniency. I cannot conclude that he will not offend in the future. I cannot conclude that he has good prospects of rehabilitation. I would need to be satisfied of those matters on balance. 16. There is by reference to s 21A(3) no other mitigating factor that can be identified. But as I said the issue of the prisoner's mental state at the time of the offending and his history of mental disability is of course a significant matter in this sentencing exercise. 17. I have concluded though that there are special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. In my view the special circumstances are quite a number. Firstly there is the effective partial accumulation of sentences one upon the other which is itself a special circumstance. In my view there is a need for an extended period of supervision to assist the prisoner in adjusting to community living when he is finally released. It is clear from the psychiatric evidence that is available to the Court including that available at the previous proceedings the prisoner needs intensive psychiatric and psychological counselling and he needs direction and assistance in relation to drug and alcohol treatment and counselling. 18. I appreciate of course as part of his history he has had the benefit as was pointed out in the previous proceedings of assistance in relation to drug rehabilitation. I am also mindful from my experience of the Court's work that people even with the best endeavours cannot manage to overcome the curse of drug addiction necessarily with one program of rehabilitation. For many people there are many false steps along the way before redemption can be achieved. 19. I am mindful in the sentencing exercises that, for the reasons identified by the Court of Criminal Appeal and the Judge in the previous proceedings, the moral culpability of the prisoner in relation to this offending is diminished to some extent. 20. I am also mindful, however, the fact is that this was a vicious attack upon a man going about his private business. It had, at least in the short to medium term, a profound effect physically upon the victim; being a medical practitioner his hands are an important part of his work. I am mindful of the reports indicating that such permanent impairment as he has is ultimately, on analysis, minor and one would hope that he would have complete if not almost complete I should say recovery. 21. On the other hand however he was entitled - as anybody is entitled - to go about his business without being accosted by a drug addict armed with a knife whose only concern was for what he could get and who obviously, by his actions and the multiple injuries inflicted upon the victim, had no concern for his welfare then. 22. The prisoner's expressions of remorse to this Court I noted. However, I say aloud, their lack of timeliness renders them to my mind almost meaningless. I am not in any way criticising the way the case was professionally conducted by his counsel. But frankly having practised in the criminal law for the best part of 40 years, I would find it very difficult to understand that just because someone says they do not remember something as a proper basis for pleading not guilty to a case which, was established conclusively by the Crown on evidence which was eminently capable of acceptance by any objective analysis, whether it be by a jury or those that would advise the prisoner. 23. I point out again that, as I may have pointed out during the trial, the point taken about the reliability of the DNA profile of the victim being found on the blade of the knife was a matter ultimately of little moment in the context of what was not challenged in the circumstantial evidence adduced by the Crown. 24. Many people I have seen in Court, or represented, have made claims of no memory of relevant events. But a claim of no memory of a relevant event is little comfort in the face of a strong Crown case. In my view this was clearly a strong Crown case. 25. So in assessing the sentence to be imposed upon the prisoner I have determined ultimately by regard to what had been done before by the previous sentencing Judge that the sentence of imprisonment should commence, not at the expiry of the non-parole period fixed by his Honour approved by the Court of Criminal ultimately, but on a date in July 2013. 26. This brings me finally to the standard non-parole period. Section 54A(2) of the Act now provides that for the purposes of sentencing an offending the standard non-parole period represents the non-parole period for an offence in the Table to the Division that taking into account only the objective factors effecting the relative seriousness of that offence, is in the middle of the range of seriousness. 27. In this particular matter, noting the nature of the weapon, the circumstances in which the weapon was used, having regard to the injuries, the offending with which I am concerned is to be regarded in the middle range of seriousness. It certainly is not above the middle range of seriousness. I can contemplate many instances of wounding in the course of an armed robbery far more serious than this. The use of a firearm in the course of robbing a bank and such like incidence are just but one example. 28. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account by the 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. 29. In this particular matter I have made a finding of 'special circumstances'. Pursuant to s.44 of the Act. Then there is the issue of the prisoner's mental disability, a matter the subject of considerable discussion in Muldrock v The Queen to which I earlier referred. Of course the current provisions now in Part 4 Division 1B reflect the reality of the decision of Muldrock v The Queen. That is that the standard non parole period is but one of many matters to be taken into account and not the solely determinative matter of what should be the appropriate non parole period. 30. The sentencing of offenders is to occur in the context of the principles set out by the High Court in Markarian v The Queen, the decision of the High Court in 2005, particularly in the judgment of Justice McHugh at [51], where the High Court pointed to the need to take into account all the relevant considerations as part of the process of what is called 'intuitive' or 'instinctive synthesis' of relevant matters. That is what has been done in this particular case I have taken into account the standard non-parole period in the context of the requirements of the legislation and the authorities which have either preceded the current provisions or have interpreted the current provisions subsequent to their enactment late last year. 31. Stand up, please, Mr Chandler. In relation to the offence for which you are found guilty by the jury you are convicted. You are sentenced to a term of imprisonment of a total of seven years. 32. That term of imprisonment will commence on 22 July 2013 and expire on 21 July 2020. In relation to that offence and in respect of that sentence I fix a non-parole period of three years and three months commencing from 22 July 2013 and expiring on 21 October 2016. That leaves a balance of sentence on my calculation of three years and nine months. You will be eligible for release to parole on 21 October 2016. 33. In calculating that non-parole period I have calculated the non-parole period I have fixed in the context of what I understand to be the effective term of imprisonment you will be required to serve having regard to the fact that you have been in custody since 22 April 2009, the date that those sentences imposed in the Local Court commenced. You can take a seat, thanks very much. 34. Yes, Madam Crown, any technical matters? 35. HERBERT: Nothing to raise, thank you, your Honour. 36. HIS HONOUR: Anything from you, Dr Berwick? 37. BERWICK: No, your Honour. ********** 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: 14 June 2017