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Local Court 29 April 2021

DPP v Cloutt-Oliver

[2021] NSWLC 7

Assault & violencePublic order & justice offences
CRIME VIOLENT OFFENCES UNPROVOKED ATTACK DEMAND PROPERTY WITH MENACES VULNERABLE VICTIM ASSESSING OBJECTIVE SERIOUSNESS

Citation: DPP v Cloutt-Oliver [2021] NSWLC 7
Court: Local Court of New South Wales
Date: 29 April 2021
Judge(s): Stewart LCM

Background

The offender, a 19-year-old male, was sentenced following guilty pleas to three offences arising from events on 10 July 2020 outside St Vincent's Hospital in Sydney. The victim was a hospital in-patient being treated for brain cancer. He had a peripherally inserted central catheter (PICC line) in his arm and had taken himself outside in a wheelchair to smoke a cigarette.

The offender, who had earlier that morning been removed from the hospital grounds for being abusive, approached the victim and demanded a cigarette using aggressive language. When the victim refused, the offender grabbed the victim's clothing, shook him violently, punched and kicked him in the abdomen multiple times, and repeatedly tugged on his PICC line. The attack ceased only when a nurse intervened by shouting at the offender to stop.

The offender was arrested nearby shortly after and participated in a recorded interview with police. He denied speaking to or assaulting anyone. He later claimed, through the sentencing proceedings, that he had no memory of the events due to heavy drug and alcohol use at the time.

Legal Issues

  • How the objective seriousness of each offence should be assessed, including the weight given to the victim's vulnerability and the manner of the attack
  • Whether the offender was drug or alcohol affected at the time of the offences, and if so, whether that reduced his moral culpability
  • Whether the offender's mental health issues contributed materially to the offending, and their proper role in sentencing
  • Whether the statutory aggravating factors of offending on conditional liberty and victim vulnerability applied
  • How to structure the aggregate sentence, including totality, partial accumulation, and the commencement date, having regard to a prior sentence served
  • Whether special circumstances existed to justify a reduction in the non-parole period

Decision

Objective seriousness

The assault occasioning actual bodily harm was assessed as falling well into the mid-range of objective seriousness (at [90]). Stewart LCM emphasised that objective seriousness is not determined by the extent of injury alone, but also by the circumstances of the offending (at [90]-[91]). This was an unprovoked attack on a defenceless and vulnerable stranger in a wheelchair, involving violent shaking, repeated punches and kicks to the abdomen, and deliberate tugging on an intravenous catheter, which only stopped when a nurse intervened (at [92]-[93]). The demand property with menaces offence was assessed below mid-range, and the resist police matter in the low range (at [95]-[96]).

Victim vulnerability and other aggravating factors

The victim's vulnerability was found to be a statutory aggravating factor under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act (at [34]). The offender was on conditional liberty for 24 offences at the time of the current offending, which constituted a further statutory aggravating factor under section 21A(2)(j) (at [29]-[30]). The court declined to find that the emotional harm suffered by the victim amounted to an aggravating factor under section 21A(2)(g), given the absence of medical opinion and photographs to support such a finding beyond reasonable doubt (at [44]).

Drug affectation and mental health

The court rejected the offender's claim of being heavily drug and alcohol affected at the time of the offences (at [103]-[104], [112]). There was no independent evidence of affectation, and the fact that the offender participated coherently in a recorded police interview shortly after the incident contradicted his claims (at [104]). The court accepted that the offender had a prior drug addiction but was not affected at the time of offending (at [113]).

The court accepted that the offender had antisocial and emotionally unstable personality problems, impulse control disorder, conduct disorder, and longstanding difficulties with emotional self-regulation that predated his drug use and remained untreated (at [120], [114]). While some link between those conditions and the offending was acknowledged, the court could not find that the mental health issues contributed to the offending in a material way, and no expert had specifically opined on a causal connection (at [121]). Accordingly, the court found that moral culpability was not significantly reduced and that a strong need for denunciation remained (at [122]).

Sentence structure and special circumstances

Both the assault occasioning actual bodily harm and the demand property with menaces offences crossed the section 5 threshold requiring imprisonment (at [141]). An aggregate sentence was imposed under section 53A of the Crimes (Sentencing Procedure) Act, with modest partial accumulation applied rather than full concurrency, the court declining to treat the offences as concurrent simply because they occurred close in time (at [145]-[146]). A finding of special circumstances was made on account of the offender's drug and alcohol issues, mental health, youth, and the fact that this was effectively his first period in custody, resulting in a reduced non-parole period (at [152]).

Orders Made

  • The offender was convicted on all counts.
  • An aggregate sentence of imprisonment of 2 years and 3 months was imposed, commencing 10 November 2020 and expiring 9 February 2023.
  • The non-parole period was set at 17 months, from 10 November 2020 to 9 April 2022, reflecting the finding of special circumstances.
  • For the resist police matter: Community Corrections Order for 12 months.
  • For each Conditional Release Order called up: those orders were revoked and replaced with a Community Corrections Order for 9 months on each count.
  • Supervision on the Community Corrections Orders was declined, given the offender would be on supervised parole upon release.

Key Takeaways

  • The Local Court confirmed that objective seriousness for assault offences is assessed by reference to the full circumstances of the offending, not merely the degree of physical injury sustained. An unprovoked attack on a defenceless, medically vulnerable victim in a wheelchair will be assessed in the mid-range even where the resulting bodily harm is not substantial (at [90]-[94]).

  • A court may reject a claim of drug or alcohol affectation at the time of offending where independent evidence is absent and the offender's behaviour in custody shortly after the offence, including participation in a coherent recorded interview, is inconsistent with that claim (at [103]-[104], [112]).

  • Under the principles in Muldrock v The Queen [2011] HCA 39, a finding that mental health issues contributed materially to the offending requires specific expert opinion to that effect. Where no clinician has identified a causal connection, the court is not in a position to make such a finding, and moral culpability is not significantly reduced (at [121]).

  • Offending while subject to conditional liberty for a large number of existing matters is a statutory aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act, and the scale of that conditional liberty is a relevant consideration in assessing the weight of the factor (at [29]-[30]).

  • Special circumstances justifying a reduced non-parole period may be found where the offender is young, has mental health and substance use issues, and the custodial term is effectively a first period in custody, even where prospects of rehabilitation are assessed as guarded rather than strong (at [129], [152]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act ss 3A, 5, 21A, 27, 44(2B), 53A, 66
- Children (Criminal Proceedings) Act 1987 ss 15, 15A
- Crimes Act 1900 ss 58, 59, 99
- Mental Health (Forensic Provisions) Act s 33
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 s 4(1)

Cases
- Aslan v The Queen [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Greaves v R [2020] NSWCCA 140
- Locke v R [2010] NSWCCA 296
- McCullough [2009] NSWCCA 94
- Muldrock v The Queen [2011] HCA 39
- Ngati v The Queen [2015] NSWCCA 125
- R v Merrin [2007] NSWCCA 255
- R v Tuala [2015] NSWCCA 8