District Court New South Wales Medium Neutral Citation: R v Greenup [2019] NSWDC 436 Hearing dates: 15 April 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Criminal Before: M L Williams SC Decision: A sentence of imprisonment of 3 years, 9 months with a non-parole period of 2 years, 2 months: at [12]. Catchwords: SENTENCING — Aggravating factors — Use of weapon SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Intoxication SENTENCING — Relevant factors on sentence — Circumstances of offence — Objective seriousness SENTENCING — Sentencing procedure — Use of statistics Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Lawrence [2005] NSWCCA 91 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Bugmy v The Queen (2013) 249 CLR 571 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Phillip Greenup (Offender) Representation: Ms T Kuppusamy (Crown) Mr G Stanton (Offender) File Number(s): 2018/100906 Judgment 1. Mr Stanton, counsel for the offender, accurately put that this is a sad case of a 33 year old Aboriginal man, who has spent 10 years of his life in custody so far. He left school early, had a disrupted childhood, got into drugs and trouble from the age of about 13. He held a few odd jobs, and had a factory job for about two years, before being sacked for being drunk at work. He would steal money from Woolworths to get by. He has not really worked for about 10 years. 2. He pleaded guilty in the Local Court to a charge of recklessly cause grievous bodily harm under s 35(2) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment with a 4 year standard non-parole period. He is entitled to a 25% discount for the utilitarian value of the guilty plea. Notwithstanding that there was to be a disputed facts hearing, the facts have not ultimately been the subject of any real dispute. They are briefly summarised in the psychiatrist's report, the history of which was affirmed and subject to challenge here. The offender was at a homeless shelter in Surry Hills and was clearly groggy and under the influence of drugs when he stabbed the victim, with what he described as the big, 20 cm knife long knife, causing lacerations to his axilla under the victim's left armpit, the right chest in the epigastric area close to his ribs and his lower abdomen causing the victim's bowel contents to hang out. He also inflicted an 8cm laceration to the victim's right calf, , as well as causing 15 centimetre laceration to his right thigh which appeared to completely sever his quadriceps muscle, he lost a litre of blood. The victim was taken to St Vincent's Hospital where he was intubated and received a blood transfusion and emergency surgery. 3. The series of events which led to the offence, started on the day of the 31 March 2018 when the offender took the view that someone had stolen some money from him and he set about trying to find the culprit. The victim was also a resident of the homeless shelter and he had consumed two bottles of mixed spirits with some friends during the morning and was drunk. The CCTV footage, of which I have some still shots, shows the offender opening the door of a room and then closing the door. The victim said his last memory was being hit in the stomach. He grabbed his stomach and looked down and saw blood. He said "what are you doing?" He said the offender's eyes were crazy and angry. There were no eyewitnesses, but a lot of people heard what was happening. They heard the victim yell out, "Don't stab me, you are going to kill me." and they heard someone, presumably the offender saying, "You're not going to breathe again, you're a dead man walking, I am going to kill you." 4. The victim then got out of the room and the offender was seen using a towel to mop off the blood on the floor. The offender is a very large man. The police came and tackled him and found knives on him and he said "you'll see why I did this, it's not my fault". When asked why he did it, he said "it's not what it seems, if you come into my room and try and attack me that's what happens". 5. As Mr Stanton pointed out this is a sad case of a man who has no social or family support. There is no-one here in court, and there is no evidence in the psychiatrist report or in the evidence from the offender of anyone who would like to give him assistance or support on his ultimate release. 6. The psychiatrist, Dr Sidorov, diagnoses an anti-social personality disorder and a substance use disorder in relation to opiate or amphetamines and alcohol. He recommends a number of treatment regimes, including abstaining from all illicit substances, regular appointments with an addiction medicine specialist and other members of a multi-disciplinary team and also some long term psychotherapeutic engagement. 7. He has suffered a significant head injury which appears to have caused some cognitive impairment, and on the one hand of course, as the Crown points outs, relying on R v Lawrence [2005] NSWCCA 91 at [24] where the Chief Justice said that weight should be given to the of protection of the public in a case such as this. On the other hand, there are DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 and Bugmy v The Queen (2013) 249 CLR 571 considerations to be borne in mind which, to a very limited extent, ameliorate the moral culpability and the need for deterrence. 8. His record is very lengthy, extending over some 29 pages, and there is no need to go into the detail of it. It is clear that most of the offending has been drug related. In short, the history is accurately summarised by the psychiatrist as showing multiple offences and initially short incarcerations from one month up to two years, for offences including possession of prohibited drugs, custody of knives in public places, goods in custody, larceny, shoplifting, escape custody, supply, common assault, affray and assault occasioning actual bodily harm. 9. The Crown bundle contains some facts and reports from Odyssey House and Community Corrections reports which are several years old and do little more than confirm the history of substance abuse and offending to which I have already referred. Mr Stanton correctly points out that this is not a case in which time served will suffice, having conceded that a term of full-time custody is required and there are no alternatives under s 5 of Crimes (Sentencing Procedure) Act 1999. He acknowledges that there will be a need for some further period of imprisonment. 10. The Crown correctly points, in terms of objective seriousness, to the matters to which I have referred, namely the number of wounds, the depth of the wounds, the location of them and the fact that they were life threatening injuries. The aggravating factors pointed to the use of a knife, and his intoxication and Mr Stanton is unable to point to any mitigating factors other than the his plea of guilty. His prospects of rehabilitation are at best described as guarded and the only signs of hope are as Mr Stanton puts summarised in the prescriptions given by the Dr Sidorov on page 10 of his report. 11. I indicate that although neither counsel have taken me to any statistics I have looked at the range of some 170 cases set out in the JIRS statistics which although they are a blunt tool, are some guide to the sentencing process and I have taken them into account. 12. The need and the hope for someone to engage with this man in a meaningful fashion and assist in his rehabilitation, clearly demonstrates the basis for finding special circumstances in my view. The orders that I make are: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 3 years, 9 months, to commence on 31 March 2018 and expiring on 30 December 2021. 3. I impose a non-parole period of 2 years, 2 months, expiring on 30 May 2020. The offender is eligible for release to parole on that date. 4. I find special circumstances. Note – These extempore remarks were revised without access to the court file ********** Amendments 29 August 2019 - Delete "of" from line 1 at [1]. 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: 29 August 2019