District Court New South Wales Medium Neutral Citation: R v Leonard [2019] NSWDC 628 Hearing dates: 4 & 5 February 2019 Decision date: 04 April 2019 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Total sentence of imprisonment 4 years 5 months; non parole period 2 years 10 months Catchwords: SENTENCE – assault occasioning actual bodily harm (DV) – intentionally choke person with recklessness as to render unconscious – dysfunctional background – childhood abuse and trauma – violence – drug and alcohol use – history of offending – mental health – plea of guilty during trial - absence of contrition – attitude to offending – medium to high risk of reoffending. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: R v Astill (1992) 63 A Crim R 148 R v Bugmy[2013] NSWSC 1885 DPP v De La Rosa [2010] NSWCCA 194 R v Engert (1995)84 A Crim R 67 Mill v The Queen (1988) 166 CLR 59 Munda v WA [2013] HCA 38; (2013)249 CLR 600 Pearce v The Queen (1998) 194 CLR 610 Thomson and Houlton v R [2000] NSWCCA 309 Veen (No 2) v Queen (1989) 164 CLR 465 Category: Sentence Parties: Regina (Crown) Matthew Jonathon James Leonard (the accused) Representation: Counsel: Ms Oliver for Crown Mr Carty for offender File Number(s): 2018/00080358 Publication restriction: Name of the complainant Judgment 1. Matthew Johnathon James Leonard appears today for sentence in relation to two counts to which he pleaded guilty before me at the Coffs Harbour District Court in February of this year when I was presiding over the sittings at the beginning of the law term. He had been arraigned on six counts, the details of which I need not dwell upon at the moment, and the complainant or victim in relation to the matters to which he has pleaded guilty, who I shall refer to as AJ, had almost completed her evidence-in-chief, as my memory serves me. At the time it was indicated to the Court that the accused should be re-arraigned and with some changed particulars to Count 1 a plea of guilty made to the two matters now for sentence. 2. The two counts to which he pleaded guilty before me, whilst pleading, I hasten to say, not guilty to the other four counts which pleas were all accepted in discharge of the indictment, were Count 1, which was an allegation that he, on 12 March 2018 at Coffs Harbour in the State of New South Wales did assault AJ thereby occasioning actual bodily harm to her, and Count 4, alleging on the same day at the same place he did intentionally choke the complainant with recklessness as to rendering her unconscious, insensible or incapable of resistance. 3. The allegation of assault occasioning actual bodily harm is one contrary to s 59 of the Crimes Act 1900. It carries a maximum penalty of five years' imprisonment and has no standard non-parole period. The other offence contrary to s 37 of the Crimes Act 1900 I am informed has a maximum penalty of ten years' imprisonment and has no standard non-parole period. 4. Pleas of guilty were entered after the victim had substantially completed her evidence-in-chief. These proceedings are not caught by the current requirements in terms of determination of discounts for the benefit to be given to a prisoner for the utilitarian benefit, or otherwise, of the pleas of guilty. 5. In this particular matter I appreciate the fact that the complainant, whilst she had to give evidence-in-chief and did so in a distressed fashion, as my memory serves me, was not subjected to the test of cross-examination which I am sure would have substantially added to her distress, particularly in the context of the other allegations of which she gave evidence and to which the accused pleaded not guilty and are no longer pressed. 6. In the circumstances I am prepared to give the prisoner a discount of 10% upon the otherwise appropriate sentence for each offence that I am now concerned with, that is Counts 1 and 4 in the indictment, to recognise that utilitarian benefit from those pleas. I appreciate it is less than it may have been if the pleas had been entered at the commencement of the trial, but in the scheme of things I don't believe any great injustice is done by providing that particular discount in the context of the guideline judgment of Thomson and Houlton v R from 1999. 7. The prisoner was born in 1972. That would mean at the time of the commission of the offences with which I am now concerned, he was 45 years of age. The victim was 17 years of age. The Agreed Statement of Facts states that they had been in a relationship since late 2017, she moving into the prisoner's unit in Coffs Harbour in late 2017; they shared a bed in the lounge room of the premises. The victim worked as a waitress at a nearby café and on the Saturday morning she was about to start work, around about 7am, however an argument commenced between her and the prisoner which seemed to have continued really throughout the rest of the weekend. The prisoner went through messages on the victim's phone and made enquiries about a person named in the messages by the name of 'Chris'. The victim admitted to the prisoner that she had during their relationship had a sexual relationship with another person of about the same age as this prisoner who was one of her co-workers at the café. The prisoner became very upset and angry and the argument between the two of them over the complainant's infidelity proceeded for the course of the weekend. There was yelling and distress, as I understand it, shared by both of them. Neighbours in the unit block had heard arguing over the weekend, but mainly the offender yelling. One neighbour reported hearing the victim, who was known to him, screaming. The victim and the prisoner, however, did go out to do some shopping at a local shopping centre between 1pm and 7pm, which movements were captured on CCTV footage. 8. Forty-eight hours, approximately, after the dispute between the prisoner and the victim had started the victim, on the Monday morning that is 12 March, got out of bed to go to work. The prisoner was still angry with her about her "infidelity". As the victim started to proceed towards the front door to leave for work he pulled her back and threw her on the floor face first and placed his hands around her throat and pulled her head back so she could not breathe. She feared she would die. He then rolled her onto her back and with his hands around her neck smashed her head into the carpet at least three or four times. He then squeezed his hands tightly around her neck until she lost consciousness. She was unaware how long she was unconscious but came to with the prisoner touching her cheek and saying her name. These are the particulars in relation to Count 4. 9. The injuries she suffered as a result of this choking were pinpoint bruising in both eyes, that is what is called petechial haemorrhages, redness at the back of her throat, bruises under her chin, bruising to her throat, a swollen neck, which was 1 centimetre greater in circumference than normal, a hoarse throat, difficulty swallowing and voice changes due to internal swelling of the voice box. The swollen throat took four days to resolve. Expert opinion was that loss of consciousness occurs within about ten seconds of strangulation. For voice change to occur, as it did in this matter, requires more than minimal pressure to be applied. 10. Before she passed out the victim scratched the prisoner's face but one might have thought this was an act in futile self-defence. I point out the prisoner is a formidable man physically. I did not have the opportunity to see the victim other than via AVL connection, but her appearance to me was that of a young woman, of course, being under the age of 18, and not of formidable build. The power difference, if I could call it that, between the prisoner and the victim was clearly considerable. 11. During the course of the morning after the strangulation episode the prisoner assaulted the victim by biting her bottom lip really hard to cause it to bleed, biting her right ear causing bruising, biting her shoulder causing bruising, hitting her head onto the carpet causing swelling. These are the facts of Count 1. 12. Her employer, or a person associated with her employment, was concerned when she had not arrived at work by 8.30am, came around to find her at her home and called out for her. The victim yelled out for him to run and get help, so at that particular point she was unable to leave the unit. 13. Police attended and assisted the victim to collect her belongings and took her to a friend's house. She made a complaint to police away from the unit and underwent a medical examination. The prisoner was arrested later that morning and gave an interview. He denied assaulting the victim and complained of her scratching him. He agreed that they had argued about her infidelity. 14. In relation to the offending with which I am concerned a couple of points need to be made. The offence of intentionally choking the victim with recklessness as to render her unconscious is, in context having regard to the fact that the prisoner is a much more powerful person than the victim, the difference in their age and the fact that it occurred in a residence where the victim was living, in other words her home, render the offence one of considerable seriousness. It is not, of course, the worst offence of its type. But to use the expression the learned Crown, used by reference to a point of reference for offences with a standard non-parole period, though not applicable, here it is a matter that to my mind falls to be considered as slightly above what could be called the middle range of objective seriousness or at the upper cusp. The fact is, of course, in circumstances where people are "strangled" that the character of that type of attack upon the throat of a person has risks for the victim and, of course. In many cases where there is a strangulation of a particular victim, particularly of a woman by man, that is by an attacker who is stronger than the woman, more serious charges of course could be brought including attempted murder, although this case of course is not in that category of offending. 15. I have mentioned by reference to s 21A(2) that the offence was one committed in the home of the victim. I am mindful of the fact, of course, that this was the prisoner's home too and, of course, the aggravating factor that I have identified can vary in terms of its "intensity" from case to case. This particular aggravation is certainly not the most serious aggravation of its type. But it is the fact that the victim was entitled to be safe in the residence where she was living, and free from molestation and violence from the prisoner whatever their relationship and whatever particular right of occupancy the prisoner had. So in taking it into account as an aggravating factor I acknowledge of course that it is not an aggravating factor of significance, but of some substance. 16. Another matter relevant to the assessment of the criminality, both in relation to the choking offence and the assault occasioning actual bodily harm offence, is that as a mitigating factor, which is directly relevant to the assessment of the objective facts of the case, these offences were not "planned". True it is, they occurred after an extended period of dispute between the prisoner and the victim. True it is, emotions were running high on the part of both the prisoner and the victim. True it is that, the prisoner had ample time for him to regather his composure before he set about the particular "assaults" with which I am concerned. But notwithstanding those matters the prisoner did not plan these matters. Why he exploded in this matter, whilst it may be explained in the psychological report, does not appear to have much rational explanation in terms of the objective facts of the matter. 17. So far as the assault occasioning actual bodily harm matter is concerned that is not the least serious of its type. There are a couple of features of the offence that to my mind make it an offence of some seriousness, but certainly not above the middle range of objective seriousness nor within that middle range, if it be not a narrow band. But towards the cusp of that classification. Firstly, while the injuries were not the most serious that can be occasioned in rendering actual bodily harm to a victim, they were multiple which is a matter to be borne in mind, and the assault with which the prisoner has been charged and to which he has pleaded, represents a course of conduct. I do not have in the Agreed Facts the period of time over which it occurred. But the facts enigmatically state that the respective assaults that I have identified occurred "during the course of the morning". Again the prisoner could have desisted from further assaults after the first act constituting the assault to which he has pleaded occurred but, in fact, did not do so. Whether the prisoner was interrupted from further assaults, given the attendance of the victim's workmate, I do not know. But when one has regard again to the physical relationship of the two people the context in which the events occurred, even making allowance for the emotions that were running high, when one has regard to the character of the assaults, the character of the injuries and the course of conduct, it reflects that the offence can be easily categorised as I have identified it. 18. It is correct, as Mr Carty skilfully points out in his submissions to me, that the offences with which I am concerned are related to one another. He calls it a "course of conduct". They are temporally related, that is related in time. But I could not see the assault occasioning actual bodily harm matter as being just a part of a "course of conduct" to which the earlier offence relates in that sense. It must have been apparent to the prisoner that he had rendered the victim unconscious when he intentionally choked her. Thus, the second assault has to be seen in the context of occurring over a period of time after the prisoner had rendered the victim unconscious and defenceless. Also bearing in mind of course, the power difference between the two people. 19. In relation to that offence it was, in the same way as I categorised it before, an offence committed in the "home" of the victim although it was, as I said earlier, also the home of the prisoner. The truth of the matter is these assaults, if I might call them that in general terms, occurred in a domestic context. The days of courts being, if I could use an expression which is probably inappropriate, "forgiving" violence within a domestic context are well and truly over. It was my experience over 40 years, as a person involved in the criminal law, going back to 1972, that in years gone past courts were somewhat tolerant of assaults occurring in this domestic context. But the reality is, particularly in the knowledge of the high number of homicides which are domestically related, violence occurring in a domestic context cannot be viewed with any form of "forgiveness" because of the fact that the victim and the perpetrator had some relationship, either ongoing or continuing up until the time of the offending. 20. I note in relation to the matter that the prisoner denied assaulting the victim. He, in fact, as the statement of facts reveals, complained of some injury she caused him, presumably in the act of defending herself from being choked as I understand the facts. I am invited to find as a mitigating factor under s 21A(3) Crimes (Sentencing Procedure) Act 1999 that the prisoner has shown contrition for his conduct. I need to be satisfied of that on the balance of probabilities. I am mindful of the fact that a plea of guilty may be evidence of contrition. The prisoner has expressed regret to the psychologist for his conduct and to the Community Corrections officer. I am not persuaded ultimately that on balance I could conclude that the prisoner is relevantly contrite as provided for in s 21A(3)(i). 21. Even if I was so satisfied on balance it would be a relatively minor matter in the range of matters to be considered "in mitigation". I note the denial of guilt from the outset, the committal for trial, plea of guilty in relation to the offences occurring a day after the victim had started giving her evidence. I appreciate in relation to Count 1 there was a change in the particulars to accommodate what may have been within the instructions held by learned counsel for the prisoner, but in the scheme of things as a mitigating factor such evidence of contrition if it be available is a relatively minor matter indeed. 22. Of course like all matters of mitigation and aggravation there are degrees that will vary accordingly. A man who runs over the small child in the back streets of Lakemba and rushes immediately to its aid, is distressed and inconsolable when the ambulance comes and the police attend, who maintains his sorrow and regret for his contact with the child, demonstrates through those actions immediately after relevant events contrition which is of great substance in the sentencing exercise. 23. The prisoner has a criminal history that does not entitle him to any particular leniency. I accept the submission of his learned counsel that I could not conclude, notwithstanding previous findings of guilt in respect of matters of personal violence, that the criminal history represents an aggravating factor under s 21A(2) of the Act. But there is a lengthy history of offending including prior imposition of gaol sentences which reflects adversely upon the prisoner in terms of consideration of any special leniency that may be sought. I accept from what his counsel said by reference to the history the prisoner's given to the psychologist that the criminal history and a lot of other material that has been provided to me, is either confirmatory of, or consistent with, the history the prisoner has given of considerable deprivation and early exposure to violence, drug taking and other activities which have set him on a course through life over which, in part, he may not have had a great deal of control given the environment in which he grew up. 24. In that regard, of course, I am mindful, as I am reminded by Mr Carty, again most skilfully, of what has been said, for example, by the High Court of Australia in decisions such as Bugmy and Munda from 2013 concerning the fact that persons who unfortunately come before the courts charged with serious offences growing up in communities and families of dysfunction and deprivation bear the burden of the effects of that for the rest of their life. The relevance of those matters for the sentencing process does not necessarily diminish with time. These again are all matters of degree. 25. His first appearance at court at the age of 12 reflects the accuracy of some of the matters of which he has given history. His Children's Court record, of course, is really of no moment. He started to appear in the Local Courts as an adult as early as 1991. He had early involvement with the use of drugs as reflected in his criminal history which appears to have occurred, in part, by reason of environmental influences. He has findings of guilt for offences of dishonesty. His first offence of violence is in 1993 where he was convicted of assaulting a police officer and fined $300. He had a further conviction for an offence of violence in 1994 for assault for which he was fined $200, and a related charge of malicious damage. He has findings of guilt for three offences of offensive conduct in Coffs Harbour in 1994. His first serious offence for violence is a conviction recorded on 17 June 1994 of assault occasioning actual bodily harm for which he was ordered to serve 140 hours community service; he was also found guilty of resisting police for which he was fined $200. He was in breach of the Community Service Order, as reported in the Sentencing Assessment Report recently prepared, and he was sentenced ultimately to two months imprisonment fixed term. He was sentenced on the same day in relation to an offence of common assault, which may have constituted the breach of the Community Service Order, to a term of seven days' imprisonment. 26. There was another finding of guilt in relation to common assault in 2002 at Bankstown for an offence committed in 2001 for which he was placed on a 12‑month good behaviour bond pursuant to what was then s 9 of the Act. He has findings of guilt in relation to the mismanagement of motor vehicles and street offences. There is a break in his offending, I note, between 2002 and 2008. But he came back to court in February 2009 in respect of an offence, committed almost a year before, of common assault and was placed on a good behaviour bond for 12 months. I note the conditions of that bond included obeying reasonable directions as to counselling for drug rehabilitation and anger management, to obey directions of a treating professional and seek guidance from a psychologist or a psychiatrist and take prescription medication as prescribed. 27. In 2012 he was convicted in December of an offence of stalking and/or intimidating a person and was sentenced to seven months' imprisonment which was suspended pursuant to what was then s 12 of the Act. He was also found guilty of contravening an apprehended domestic violence order and placed on a two-year good behaviour bond. So, the record reveals violence in a domestic context, the circumstances of which are denied. In 2013 he committed the offences of producing and or disseminating or possessing child abuse material; he was sentenced to 12 months' imprisonment with a non‑parole period of six months. He was also at the same time found guilty of other offences including possessing a prohibited drug, possession of ammunition without holding the relevant authority or licence and cultivating a prohibited plant, a matter with which I am now concerned, on a s 166 certificate for which he was placed on a 12-month good behaviour bond. 28. He has other findings of guilt that I have not mentioned in relation to possession of prescribed and restricted substances and a prohibited drug in 2017 as well as, as is relevant again to a matter on the s 166 certificate, two offences of failing to comply with reporting conditions. Bearing in mind he is a person who is required to register and report accordingly because of his previous finding of guilt in respect of his connection with child abuse material. For the failure to comply with his reporting conditions he was sentenced in each instance to three months' imprisonment. In between times of those convictions and the matters with which I am concerned he appeared at the Coffs Harbour Local Court and was convicted of an offence committed in November 2017 of driving with an illicit drug present in his blood, for which he was fined and disqualified. 29. I might, in relation to that matter just amend that last observation. In the context of the matters that I am concerned with, they actually occurred before he appeared before the Court to be sentenced in relation to that driving matter. However, I am informed by the Crown in the cover sheet that the prisoner was not subject to conditional liberty at the time of the offending. Therefore I am unable to conclude that he was on bail in respect of that driving matter, notwithstanding the fact that it was current before the Courts at the time of the commission of these offences. 30. Community Corrections prepared quite a lengthy report. There is another report that was prepared sometime previously before the prisoner came into custody in relation to the current matters, which is provided in the defence bundle and which I have read overnight. Concentrating on the more current report, the prisoner, of course, has had a lengthy connection with either the Probation and Parole Service or Community Corrections in respect of his criminal history and his personal circumstances; there are details which I have already summarised from other source material. So far as his attitude to the offending in the context of what I have said about the absence of contrition through lack of timely acknowledgement of guilt or taking responsibility for his actions, I note that whilst he accepted "most of the police facts". He expressed the view that certain aspects were "exaggerated". He described his own behaviour as "a brain snap". He attributed his aggressive behaviour to a build‑up of emotions and his inability to manage them, and he reflected a history of anxiety and depression and a long history of drug usage going back to his childhood. 31. He expressed a willingness to undertake intervention from Community Corrections if required. The prisoner was noted as recognising that his offending behaviour had impacted the victim, himself and the community and he expressed regret to the Community Corrections Service officer for his offending behaviour. He acknowledged the victim may live in fear and he has ruined his friendship with her. He also acknowledged the fact that his neighbours may live in fear. I note in the context of the psychological report, which I will come to in a moment, the prisoner made the observations, as I noted, that one of the matters that assisted him in entering the plea of guilty was the way in which the complainant or victim had presented as "terrified". And I say bearing in mind, I am not concerned with all the allegations that were made against the accused, that that was the impression that the victim left on me when she was giving evidence. Admittedly, in relation to a range of conduct for which the prisoner is not responsible. 32. The prisoner has been on supervision orders before, including parole. It was noted that previous records indicate that he had demonstrated difficulty in engaging with external services and his response to supervision previously was considered superficial. But he did ultimately complete his parole order satisfactorily. I bear in mind of course that it was only for a period of six months. He is assessed by the actuarial instrument used by Community Corrections to be at 'medium' to 'high risk' of reoffending and a supervision plan for him on his release will require him to be subject to what is described as a Tier 3 medium to high supervision level because the truth of the matter is, as acknowledged by his learned counsel and is reflected in the psychologist's report and the Community Corrections report, the prisoner is at risk of reoffending given his past criminal history, his mental health issues and his susceptibility to the abuse of either prescription and/or prohibited drugs. 33. It was noted, amongst other things, by the Community Corrections Service that he was a suitable person to undertake Community Service work, although being a registered sex offender he is only able to do community service work specifically for "sex offenders" in Coffs Harbour. 34. With regard to the material that has been provided by the defence I found the report, which is quite extensive, from the psychologist most interesting, very detailed, a very thorough one. If I may start from perhaps the end of the report, I note that whilst the psychologist is not in a position to undertake a diagnosis she does express the view or views that the prisoner met criteria for post-traumatic stress disorder arising out of his early lifetime experiences, and this was present or relevant at the time he "committed the current offences". The psychologist also formed the view, by reference to DSM-5 criteria, that he had a persistent depressive disorder. 35. The prisoner has not given evidence and of course, when one receives a psychological report for a prisoner where the opinions are dependent upon the prisoner's version of events, the Court is obliged to approach findings or the assertions of the relevant patient or prisoner, with considerable circumspection. There is however, to be fair to the prisoner, some support for some of the matters that the prisoner has identified as informing his current presentation, both physically and mentally. For example, I have referred to the criminal history, as Mr Carty pointed out, reflecting a number of these matters. Dr Foo, who is a medical practitioner in Woolloomooloo, was consulting with the prisoner in Sydney in 2016 over a number of months and his notes provide details of a history that is "consistent" with the history provided as to the difficulties of the prisoner's upbringing, his challenges in relation to his mental health over a number of years, the medication that he has been taking and other features set out in greater detail in the psychological report. 36. With regard to the psychologist's detail of the history, it notes the rather unusual circumstances of his upbringing and the range of abuses to which he was subjected, that no doubt have informed his attitude to other people and perhaps to society. He was inured to violence in the context of being an observer of extensive domestic violence within his household and violence towards himself He was inured to the dangers of drug and alcohol abuse, given his mother's difficulties in this regard, and the activities of people around his family. Clearly on the basis of the evidence contained within the history he has provided, the prisoner had a highly dysfunctional upbringing. 37. He had a very limited education. He asserts that he was diagnosed with attention-deficit/hyperactivity disorder, or ADHD, before the age of eight. However, his mother either consumed or sold his medications. His ADHD undermined his capacity to succeed at school. He had a number of physical setbacks over the years. For example, he was hit by a motor vehicle when he was aged eight, he had an injury to his head and bruising to his body, although no broken bones. He experienced a range of symptoms consistent with a traumatic brain injury which presumably, from what I can read in the history, was not properly treated or identified. He states that he has been "rendered unconscious a further 12 times throughout his life". These events have either occurred through self-harm, by hitting his head against a wall, by fighting, in physical conflict with police and childhood accidents such as falling off his bicycle. He has overdosed twice, once accidentally, once intentionally. The intentional overdosing occurred using heroin in his early twenties. The psychologist opines that the sheer number of head impacts he reported, suggests increased likelihood of incurring some form of head injury, but there is no indication in the history he provided that this has ever been properly investigated. He suffered a back injury in 2012 whilst "being aggressive towards the police". He was diagnosed with a tumour on his neck in 2016 and I note from prison medical records that have been produced, treatment of the prisoner for example in 2018, for continuing injury or pain in his back area, although the most recent treatment would appear to be in relation to an acute injury. 38. As I have said he has had a significant history of drug and alcohol abuse which is consistent with, and no doubt connected to, the circumstances of his upbringing. He has also had a history of "problematic gambling". The prisoner has been subjected in childhood to a range of abuse which I need not go into. The fact that he is inured, however, to the use of violence to settle disputes and the like, provides little comfort in respect of the appropriate approach to the sentencing of this particular matter. I mean by that, that it may be a matter to be concerned with in a context of consideration of, for example, the principles set out by McClellan J, when he was the Chief Judge of the Common Law Division, in the decision of DPP v De La Rosa [2010] NSWCCA 194, particularly at [177] - [178]. 39. However, in the context of those matters having an impact on his mental health, particularly by regard to the findings of the Community Corrections' officer and the findings of the psychologist the risks of the prisoner's reoffending have been identified as high or medium to high, the fact of regular offending over a period of time, the character of the offending with which I am concerned, which was not justified having regard even to the character of the dispute with the young woman, leaves one with the uncomfortable feeling that the prisoner is a person who at this present time continues to present a risk to others. Either with whomever he has a domestic relationship, or with the community in general. 40. The 'purposes of sentencing' set out in s 3A of the Act reflect some of the purposes of sentencing that were identified in the appeal of Robert Vincent Veen to the High Court, decided by the High Court in 1988. The majority of the Court identified four of the seven purposes of sentencing now in s 3A. They made the point that the purposes of sentencing in the instance to which they referred may be 'guideposts' which sometimes point in opposing directions. The current purposes of sentencing which are expanded upon those identified in Veen (No. 2) 31 years ago, are all relevant in this particular matter. There is a requirement in respect of each offence to ensure that the prisoner is adequately punished for the offences to prevent crime by deterring him and other persons from committing similar offences, to protect the community from the prisoner, to promote his rehabilitation, make him accountable for his actions, to denounce the conduct of the prisoner and to recognise the harm done to the victim. As I said, by definition a number of those matters may point in different directions. 41. So far as the identification of symptoms by the psychologist consistent with the categorisation of mental illnesses and disabilities by the Diagnostic and Statistical Manual of Mental Disorders (5), and particularly noting a confirmation of a longstanding depressive illness on the part of the prisoner, one can acknowledge by reference to those matters identified by McClellan J that it may be appropriate to conclude that, perhaps slightly, lesser weight may be given to general deterrence because the prisoner is not an appropriate "medium" for the message of general deterrence. 42. That having been said, as was acknowledged by his counsel and as was discussed by Gleeson CJ in the 1988 decision of Engert, there are cases where the character of the condition suffered by a particular prisoner, and reflecting upon their relationship to the offending, may require greater weight to be given to specific or personal deterrence. That is the situation here and it seems to me that greater weight to be given to personal and specific deterrence is such as to cancel out, if I could use that expression, such benefit or "mitigation" that arises from slightly less a weight being given to general deterrence. 43. The psychological report reflects upon the history he has provided, showing his candid approach to the assessment of a background of violence within domestic relationships, although it is identified as "bidirectional". That is, as I would understand it, it is something that is not solely attributable to the prisoner. The history provided from the prisoner reflects upon his highly medicated existence before the commission of these offences and his abuse of prohibited drugs and prescribed medications to "numb" himself. In this respect one can see the connection between his background and his disadvantages in life affecting him to the point where the reality of life is oppressive. The psychologist noted in relation to the depressive illness of the prisoner over a period of time that his mood would be variable. He would have feelings of lethargy and being socially withdrawn for extended periods of time and would have elevated feelings of stress and anxiety. 44. So far as his risk assessment was concerned in the context of violence towards an intimate partner an assessment was made using what is called the Spousal Assault Risk Assessment Guide (SARA). The rating of the prisoner took into account a number of criteria, which I need not list, but are set out at p 13-14 of the report. The psychologist concluded that based upon his identified risk factors on this scale he was regarded as being of "high risk of violent reoffending towards an intimate partner". The issue of sexual reoffending is not dwelt upon. 45. The conclusion of the report noted that his childhood abuse and trauma undermined his ability to engage academically at school and affected his education to the point where he became homeless at a young age. There were a range of factors that had potentially detrimental neurocognitive impacts upon him, some of them may be completely beyond his control, his consumption of substances being a matter that has impacted him in that respect. It is noted that there is literature to show that the impacts of adverse early life experiences on the developing brain include heightened responses to stress, chronic dysregulation and mental health issues. Also there is a history of numerous head injuries that have not been fully explored which can have significant neurocognitive impacts. She describes the prisoner as being a: "traumatised individual with a significant history of depression. He has poor impulse control and specific triggers for aggression linked to his childhood abuse. He has a poorly developed self-concept, struggles with emotional intimacy and closeness and a poor sense of self-worth. He appears to have few adaptive coping and communication skills and demonstrates a tendency towards reactive forms of aggression. He engaged in aggressive forms of apparently consensual sexual practices with the victim previously which likely reduced potential barriers". 1. He lacks, as the psychologist identifies it, an adequately supportive prosocial network. It would seem when he's released from custody he will be "floating", if that is the correct expression, without proper support in the community. This is a matter also to some extent, but not as eloquently, reflected in the Community Corrections report. There is a recognition of the need for him to get proper assessment of the impact upon him of cognitive disadvantage through New South Wales Government Disability Services. The psychologist was of the view that the prisoner would require intensive criminogenic intervention and that he be referred to the Corrective Services of New South Wales Sex and Violent Offender programs for his suitability for particular programs. He needs a range of therapies to direct him away from the conduct of the character with which I am now concerned. He also needs to participate in Narcotics Anonymous and related typed programs. He would benefit from structured release planning. It was recommended by the psychologist, that he should get ongoing support from a psychologist on his release. 2. The detail of that report, to my mind, fits well with the less detailed, but similarly frank and realistic assessment of him by Community Corrections. In that regard I note the supervision plan which is recommended in the most recent report, of 2 April, at the top of p 4 which suggests a range of programs that he should undertake on his release. 3. In respect of the matters on the s 166 certificate, I have noted the facts in relation to those. He was charged in relation to those matters when charged in respect of the matters principally for sentence today. I have been provided with the court attendance notices in relation to those matters and I have been helpfully provided with the facts that concern the character of the similar breach of reporting responsibility charges that were dealt with in 2017, or were committed in 2017. 4. I am mindful of the fact in sentencing a prisoner in relation to all of the current offences I am to have regard to the "totality of criminality". I am required to fix an appropriate sentence for each offence and then turn my mind to the issue of totality and thus the issues of concurrency and accumulation as discussed by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly at [45]. And also of course the leading High Court judgment on totality and criminality discussed in Mill v The Queen a decision from 1988 reported in 166 CLR. 5. Mr Carty in his usual thorough way provided me with another Pre-Sentence Report, one of the 'ancient' forms of report bearing in mind it was prepared in 2017. It sets out details of prisoner's background and assessment of him not inconsistent with any other material that is before me. I note, in the context of identifying criminogenic needs, that report in 2017 identified a range of such needs, including his criminal antecedents, education and employment, financial matters, marital and family matters, accommodation, leisure and recreation, companions or associates, alcohol and drug problems, emotional, personal, psychological issues impacting upon his mental health and his predilection at that time to engage with child abuse material, his attitude and orientation et cetera, et cetera. An extensive list of issues are to be addressed by the Community Corrections Service or the Parole Service in due course with disposal of those matters charged in 2017. 6. With regard to mitigating factors under s 21A(3) I have concluded as it is relevant to the assessment of the objective seriousness of the offending that neither of the principal offences were planned. His plea of guilty is a mitigating factor. Whilst his counsel urge me to conclude that he has some prospects of rehabilitation I could not conclude as mitigating factor that he has real prospects of rehabilitation, nor that he is unlikely to reoffend. But I do acknowledge, as I had in the conclusion that I have reached, that there are "special circumstances" pursuant to s 44 of the Act. That the prisoner needs an extended period of supervision, or certainly an extension of what could be called the usual period of supervision, to get professional assistance in that regard and to assist to adjust to community living because it seems to be that there is no particular prosocial environment to which he can return without professional assistance. 7. I should point out, of course, in the context of considering s 44 of the Act that the partial accumulation of a sentence one upon the other is always to be regarded as "a special circumstance". The decision in Astill, going back to the introduction of the 'Sentencing Act' in 1989 identified that. If one does not make a finding of special circumstances in respect of an accumulated sentence one will end up by fixing the "statutory ratio" in relation to that sentence alone, with a complete distortion of the relationship of the effective non-parole period to the balance of sentence. But I have ultimately concluded that I should accept the submission of his learned counsel that it should be a greater adjustment than merely required by reason of partial accumulation. But recognising, of course, whilst the offences are related in time they are two separate offences and have to be seen in the context of the facts as I have outlined them before. 8. As can be seen from the comments I have made ex tempore in this matter I have taken into account the various matters that have been raised by Mr Carty. Not every matter that he has put to me has been accepted, but there are many matters that he has raised with me that have been acknowledged or adopted for the purposes of this sentencing proceeding. 9. In relation to his criminal history both he and the learned Crown Prosecutor made good points in my opinion. His history of personal violence is not as extensive as might appear at first blush. I note the absence of significant periods of imprisonment previously for any type of offending, but certainly in relation to many of the personal violence matters he has received penalties other than terms of imprisonment. On the other hand, the Crown pointed out that whilst his criminal history has ranged over a period of time, particularly in respect of offences of personal violence, there has been in recent years an escalation of seriousness of the character of his offending. 10. I have taken into account what the Crown has said about the assessment of the objective seriousness of the offending. Clearly it is acknowledged by learned counsel for the prisoner and the Crown that the s 5 threshold has been crossed. The Crown did put a submission to me that, as I have noted it, that there was "nothing much to support a finding of special circumstances". I have already pointed out that partial accumulation is a "special circumstance", but as I said, there are other features of the matter that were identified by Mr Carty. 11. I have taken into account the matters raised by Mr Carty in reply, but I had already divined from having read the material that the supporting material within the defence bundle adds credibility to the history that has been provided by the prisoner to the psychologist upon which the psychologist has concluded her opinions. I am mindful of the fact, as I have said earlier, that the opinions of a psychologist do not amount to a relevant "diagnosis". But there is ample evidence, it would seem, through Corrective Services records, Community Corrections or Probation and Parole histories, histories given to doctors, medications given to the prisoner and the like, that the prisoner has a central condition of depression which has permeated his existence for some considerable period of time. However, as I said, the incapacity of the prisoner to control himself, notwithstanding those conditions, is a matter of concern. 12. Hopefully having addressed all the matters that arise from the material I propose to sentence the prisoner now. Do you mind standing up please, Mr Leonard. 13. In relation to Count 1 you are convicted. You are sentenced to a term of one year nine months imprisonment to date from 12 March 2018, expiring on 11 December 2019. In relation to Count 4 you are convicted. You are sentenced to three years four months imprisonment to date from 12 January 2019, expiring on 11 August 2022. In that matter I fix a non-parole period of two years commencing on 12 January 2019 and expiring on 11 January 2021. I fix a balance of sentence of one year seven months expiring on 11 August 2022. Those sentences reflect a discount of 10% for the plea of guilty. You can sit down now, thanks. 14. In respect of the matters on the s 166 certificate, and I have, as I have said, taken into account the facts in respect of those matters, in respect of sequence 3, which is the offence of cultivating, as I understand it, five cannabis plants or Indian hemp plants, the offender is convicted. He is sentenced to six months' imprisonment commencing on 12 March 2018 and expiring on 11 September 2018. In respect of the offence of possessing cannabis he is convicted. I would in the ordinary course have given him a fine if the matter had stood alone or at least stood without the more serious offending with which I am concerned. But the fixing of a fine, to my mind, is academic and may place upon the prisoner a burden that he may have to shoulder on his eventual release. So in respect of that matter I sentence him to one month's imprisonment commencing on 12 March 2018, expiring on 11 April 2018. 15. In respect of his offence of failing to comply with child protection reporting obligations noting, of course, the very serious implications of failing to report and the protective character of the child protection reporting provisions I convict the prisoner. I sentence him to six months' imprisonment, to date from 12 March 2018 and expired on 11 September 2018. 16. Thus, on my calculation, the total sentence imposed is four years five months with a non-parole period of two years ten months. 17. Any matters from you, Madam Crown? 18. OLIVER: No, your Honour. 19. HIS HONOUR: Thank you very much for your assistance. You don't need to stand up, by the way, Madam Crown. I had a gentlemen who I was sentencing via AVL that was in prison at Wellington and when I came into court he stood up in the room at Wellington and I said, "Don't stand up for me". It looks somewhat silly standing up for a judge when you're miles away. 20. OLIVER: Yes, your Honour. 21. CARTY: May it please the Court. 22. HIS HONOUR: You understand the sentences, Mr Leonard? 23. The total sentence is four years five months. I'm obliged to make the sentences partially accumulative upon one another. Twenty years ago if you'd come up for sentence in relation to those offences the likelihood is the sentences would have been concurrent. But the law has changed considerably since then and it's the proper practice where there is separate criminality to make one sentence partially accumulative upon the other. Not totally accumulative, of course. We are not in Texas where people get sentenced to life imprisonment plus life imprisonment plus life imprisonment or whatever. We have to reflect, and I did not expressly refer to this in my judgment, the concept of what we call the 'totality of criminality'. And that's why the matters on the certificate, the summary matters, I've made concurrent with one or other of the sentences I've imposed. You're excused, thank you very much. ********** 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: 06 November 2019