R v Swan [2018] NSWDC 404

District Court New South Wales

Medium Neutral Citation: R v Swan [2018] NSWDC 404 Hearing dates: 29 November 2018 Date of orders: 29 November 2018 Decision date: 29 November 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a head sentence of 3½ years with a non-parole period of one year and 9 months Catchwords: CRIMINAL LAW – Sentence – Form 1 – Continuing attitude of disobedience to the law – Reckless wounding – Resisting officer in execution of his duty. Cases Cited: . Category: Sentence Parties: The Crown Joshua Alan Swan Representation: Solicitors: Director of Public Prosecutions – The Crown HCD Law – The offender File Number(s): 2017/349863

Judgment 1. HIS HONOUR: The offender in this case, Joshua Swan, has a lengthy criminal history, beginning in the Children's Court. There are a number of offences of violence on it. He has offences of affray, aggravated break and enter and reckless wounding. It is another offence of reckless wounding for which I must sentence Mr Swan today. 2. He has demonstrated a continuing attitude of disobedience to the law and, more than most, an element of personal deterrence has to be built in to the sentence I will ultimately impose upon him. Mr Swan needs to recognise that he cannot keep doing what he has done in the past, which is responding to various issues in his life with violence 3. He was in a relationship with a Ms Dedera. They had a young child together. They were not living together, though. Ms Dedera was living in a house with a number of other people. The offender said that he went to that house to collect Ms Dedera, as he believed she had been not caring for their daughter. 4. A version that Mr Swan gave in evidence today was, at least initially, different from the version which appears in a document headed "Agreed facts", tendered by the Crown on sentence. When Mr Swan was asked whether he did truly agree with the agreed facts, portions of which were read to him, he did indicate some agreement. 5. He knocked on the door. A Mr Jenkins opened the door. Mr Swan indicated that he wished to locate Ms Dedera. The agreed facts say the offender was wearing a white and red shirt pulled over his head but Mr Swan indicated that he just had a hoodie on, with hood up, (despite it being mid‑November.) 6. Mr Griffin, the ultimate victim of the offence, heard Ms Dedera gasp. He turned around and saw the offender moving towards him with a knife in his right hand. He was able to recognise the offender because he had met him before and the shirt which was pulled over Mr Swan's head would move from time to time, so that he could see Mr Swan's face. 7. The offender then lunged towards Mr Griffin with the knife. In order to protect himself, Mr Griffin took hold of the knife so that it would not touch him. Mr Griffin was holding the blade so that the side of the blade was touching his chest, in order the pointed end of the blade would not stab him. Mr Griffin alerted other members of the household by shouting out, "He's got a knife, he's got a knife." 8. Mr Griffin held onto the knife and so did the offender. Whilst this was happening, with his free hand, Mr Swan punched Mr Griffin 15 times. Eventually he fell backwards and lost hold of the knife. He got to his feet and ran away. He ran to the driveway of the house. Mr Swan pursued him. Mr Griffin fell down on his back. Mr Swan was still holding the knife and Mr Griffin kicked at him to keep him away. Mr Swan again lunged at Mr Griffin. Fortunately, Mr Griffin was able to get to his feet and run back inside and close the door. 9. It turned out that he had received what was a relatively minor injury to his left ring finger. He went to Cessnock Hospital later and had three stitches put in but he was injured in other ways too, receiving bruising to his right eye, swelling to his face, ear and soreness and redness to his chest. 10. I am satisfied that the version Mr Swan advanced significantly understates his criminality. He was motivated by anger, it would seem, because his attack upon Mr Griffin began very early without warning. 11. The knife that he used was 30 centimetres in length. It is described in the facts as a camouflaged hunting style knife. Mr Swan maintains that he did not take that knife with him to the house but picked it up in the kitchen. Ultimately, it is not terribly important because whether Mr Swan had it in his possession as he went to the house or whether he picked it up soon after he got inside, it is clear that he armed himself with a knife before there was any interaction between him and Mr Griffin. 12. When I sentence Mr Swan for an offence of reckless wounding I take into account, at his request, another offence, which occurred when Mr Swan was being arrested. Police got some information which alerted them to where Mr Swan was. When police went to those premises, it appears that Mr Swan secreted himself in the roof cavity. One of the police officers got a ladder and climbed up to the manhole and looked into the roof. He saw Mr Swan trying to conceal himself. After a while, Mr Swan indicated that he would comply but he broke through the gyprock in the roof, so that his feet were protruding through to a bedroom below. He was told he was under arrest. One of the police officers said, "Get out of the roof or I'll pull you through." At this stage he took hold of Mr Swan's leg. Mr Swan claimed to be stuck but the police officer did not think so. 13. At this stage Mr Swan stood up and repeatedly hit his head into the roof tiles in an attempt to break through the roof. He eventually succeeded. He ran across the roof, jumping down onto the ground and ran away. He was eventually found hiding behind some bushes. He was told that he was under arrest and sprayed with OC spray and tackled to the ground. The offender resisted being arrested. He kicked his legs out, and tried to stand up until he was handcuffed. That is an offence of resisting an officer in the execution of his duty which, as I say, I will take into account when I sentence him for the reckless wounding matter. 14. The offender pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be 25 per cent less than it would otherwise have been. The maximum penalty is seven years imprisonment. This is one of those offences that carries with it a standard non-parole period. I have taken into account both the standard non-parole period and the maximum penalty in formulating the sentence to impose upon Mr Swan. My reasons for not imposing a standard non-parole period appear in these remarks on sentence. 15. Mr Swan has had an unstable background. He had a rocky relationship with his stepfather as he was growing up which led to him leaving home at the age of 14 or 15. He did not do too well at high school and found himself living with various relatives and friends, doing some labouring work, until, at the age of 22, he had his first daughter. He was in a relationship with the mother of his first daughter at the time. 16. Mr Swan said that he matured a little bit. He had been using drugs for some time, in particular the drug ice, but his drug use decreased. He went to rehab and did the Drug Court and he said that he was clean between 2010 and 2012. 17. He served a sentence of imprisonment and eventually commenced a relationship with Ms Dedera. He said that she was a drug user and he would use drugs with her, although he used fewer drugs when she was pregnant. 18. Mr Swan plans to live with his mother upon his release. She has been given custody of Mr Swan's two daughters, including his daughter Ruby, who was a product of the relationship between he and Ms Dedera. 19. Although, as I mentioned earlier, Mr Swan's relationship with his stepfather was a rocky one, as Mr Swan matured their relationship improved. Tragically, however, his stepfather died whilst Mr Swan was in custody bail refused for the matter on which I must ultimately sentence him. Mr Swan was clearly upset as he gave evidence about this circumstance. Unfortunately, these are the types of things that happen when people are sent to gaol, and people get sent to gaol because of their own misconduct. Mr Swan needs to understand that if he continues to offend again in the future, similar tragic things might occur. 20. Mr Swan needs to understand too that his children are deprived of him being at home to care for them, and his mother is deprived of his assistance in caring for his two children because of decisions that he has made, decisions in particular to commit criminal offences which have resulted in custodial penalties having to be imposed. 21. Mr Swan has plans for the future. He will be doing some work for an archaeologist upon his release from custody and has the support of a Ms Tracey Skeen, from an indigenous training organisation, who will assist him in obtaining fulltime employment. 22. I should make it clear that the hardship which Mr Swan's mother and his two daughters suffer from him being in custody is unfortunately not exceptional. But I will certainly take it into account as part of the general mix of subjective factors affecting Mr Swan's time in custody. 23. I have already mentioned that the wound which Mr Swan inflicted was a relatively minor one but that does not mean that this offence was not a serious one. As well as wounding Mr Griffin, the offender punched him about 15 times. As I mentioned already, he armed himself with a knife before there was any interaction between he and Mr Griffin and was motivated by anger at the whole situation which confronted him. 24. Mr Swan is now 30 years of age. As he matures, it is to be hoped that he will come to realise that it is his own decisions which have seen him spend so much of his life in custody. It is his own decisions which have caused harm, not only to the victims of his offending but also to family members, such as his mother and his two daughters. 25. Notwithstanding Mr Swan's continuing attitude of disobedience to the law, I will make a finding of special circumstances in his favour. This is not done to benefit Mr Swan but to benefit the community and I do not make the order to benefit Mr Swan for any other reason apart from the hope that an extended period of supervision on parole will assist him to make the right decisions in future. 26. As I mentioned, the offender has been bail refused since his arrest on 19 November 2017 but about seven and a half months of his time in custody is referrable to other offences. The Crown suggests that I should take into account none of that time in custody when he was serving other sentences, but as I understand the principle of totality, I should consider not only the offence for which I am sentencing Mr Swan, taking into account the Form 1 matter of course, but also the offences for which he was sentenced whilst bail refused on this matter in determining the appropriate overall sentence and I do determine that I will start the sentence I will shortly announce from 7 April 2018. 27. I impose sentence as follows: 28. I set a non-parole period of one year and nine months to have commenced on 7 April 2018 and a head sentence of three and a half years. The non-parole period will thus expire on 6 January 2020, which is the first day on which Mr Swan will be eligible to be released on parole.