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District Court 10 February 2022

R v Matthew Cole (a pseudonym)

[2022] NSWDC 238

Assault & violenceTheft & property
AGGRAVATED BREAK AND ENTER JUVENILE OFFENDER AFFECTED BY DRUGS (XANAX) PARADOXICAL SIDE EFFECT OF XANAX ASSAULT ON A PUBLIC STREET ASSAULT BY GROUP OF YOUTHS

Citation: R v Matthew Cole (a pseudonym) [2022] NSWDC 238
Court: District Court of NSW
Date: 10 February 2022
Judge(s): Sutherland SC DCJ

Background

The offender, Matthew Cole (a pseudonym), was 16 years old at the time of the relevant offending. On the evening of 31 July 2020, he participated in a group assault on a stranger, Brett Halcro (also a pseudonym), in a public street in Pyrmont. The assault arose after members of the group, who had been attending a party in a rented Airbnb apartment, responded to a phone call from a young woman who claimed she had been "groped" or "grabbed" by the victim. The group left the apartment and attacked the victim on the street.

During the assault, while the victim was unconscious and lying on the ground, the offender drew a knife and stabbed and slashed the victim to the head and face at least seven times. The court was careful to note that there was no evidence the victim had engaged in any inappropriate sexual conduct; he had grabbed the young woman's arm when she tried to leave the scene after his acquaintance had drugs stolen from him.

Separately, the offender's fingerprints were matched to those found at a commercial premises in Killara that had been broken into on 26 April 2020. He was charged with offences arising from that earlier incident as well.

  • What sentence was appropriate for causing grievous bodily harm with intent (s 33(1)(b), Crimes Act 1900), taking into account the offender's youth?
  • What weight should be given to the offender's possible drug intoxication (specifically, an alleged paradoxical reaction to Xanax) as a mitigating factor?
  • Whether the standard non-parole period applied, given the offender's age at the time of offending
  • Whether "special circumstances" existed to justify a variation from the standard statutory ratio between the non-parole period and the additional term of the sentence
  • Whether an order under s 19(4) of the Children (Criminal Proceedings) Act 1987 was appropriate to permit the offender to serve part of his sentence in a juvenile detention facility

Decision

The court imposed a head sentence of 8 years for the principal offence of causing grievous bodily harm with intent, with a non-parole period of 4 years backdated to the date of custody, 3 August 2020. The non-parole period was set to expire on 2 August 2024, with an additional supervision term expiring on 2 August 2028. The assault occasioning actual bodily harm in company charge, placed on a Form 1, was taken into account in setting this sentence.

The court found that the standard non-parole period did not apply because the offender was a juvenile at the time of offending. The court acknowledged the gravity of the assault, including its group nature, the use of a weapon on a defenceless and unconscious victim, and the severity of the injuries. At the same time, the court gave significant weight to the offender's youth, the real possibility of rehabilitation, and his exemplary conduct while in custody.

On the question of drug intoxication, the court accepted there was a real possibility the offender had ingested Xanax before the assault, and that Xanax can produce a paradoxical disinhibiting side effect in some users. However, self-induced intoxication was treated as a factor that could help explain the conduct but did not excuse it. The court noted it was an inexorable conclusion that the likely ingestion of illicit substances and alcohol contributed causally to what occurred.

The court found that special circumstances existed, warranting a departure from the standard non-parole period ratio. The offender's exemplary behaviour in custody and strong rehabilitation prospects supported this finding. The sentence was left subject to a further determination as to whether a s 19(4) order under the Children (Criminal Proceedings) Act 1987 would allow the offender to serve part of the sentence in a juvenile detention institution, with proceedings stood over for that purpose.

Orders Made

  • Head sentence of 8 years imprisonment for causing grievous bodily harm with intent (s 33(1)(b), Crimes Act 1900)
  • Non-parole period of 4 years, backdated to 3 August 2020, expiring 2 August 2024
  • Additional term of 4 years supervision, expiring 2 August 2028
  • Assault occasioning actual bodily harm in company (Form 1) taken into account
  • Separate sentence imposed for aggravated break and enter in company (s 112(2), Crimes Act 1900), to be served concurrently (specific term not located in provided text)
  • Direction for Youth Justice NSW to prepare a report regarding s 19(4)(b) and (c) of the Children (Criminal Proceedings) Act 1987
  • Leave granted to the offender to file evidence relevant to the s 19(4) determination
  • Proceedings stood over part-heard to 25 March 2022 for the s 19(4) determination

Key Takeaways

  • The District Court confirmed that the standard non-parole period prescribed by statute does not apply when the offender was a juvenile at the time of the offending, even where the offence (causing grievous bodily harm with intent) would otherwise attract a seven-year standard non-parole period.
  • Self-induced drug or alcohol intoxication can go some way toward explaining offending conduct at sentencing, but it does not excuse it; the court treated the likely ingestion of Xanax as a partial explanatory factor only.
  • A claimed paradoxical disinhibiting reaction to Xanax was accepted as a real possibility on the evidence, illustrating that expert or agreed evidence about a drug's specific pharmacological effects can be relevant to the sentencing exercise for juvenile offenders.
  • Special circumstances sufficient to vary the standard non-parole period ratio were established on the basis of the offender's exemplary conduct in custody and strong prospects for rehabilitation.
  • Under the Children (Criminal Proceedings) Act 1987 (NSW), a sentence imposed on a juvenile offender may be subject to a further order permitting incarceration in a juvenile detention institution (rather than adult custody) until age 21, but this requires a separate determination supported by a Youth Justice NSW report and any additional evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 59(2), 112(2), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(4)

Cases
- AI v R; R v SB & AI [2011] NSWCCA 95
- Arulthilakan v R; Mkoka v R [2003] HCA 74; (2003) 203 ALR 259
- BC v R [2020] NSWCCA 329
- BP v R [2010] NSWCCA 159
- JM v R [2012] NSWCCA 83
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- PD v R [2012] NSWCCA 242
- R v A; R v Hurst [2012] NSWDC 186
- R v AN (No 2) [2015] NSWSC 308
- R v AN [2014] NSWSC 1879
- R v DGP [2009] NSWSC 1154
- R v FD; R v JD [2006] NSWCCA 31
- R v Khosravi [2008] NSWDC 298
- R v Pham [2015] HCA 39; (2015) 256 CLR 550
- R v PO [2017] NSWSC 757
- R v SB; R v AE; R v MG [2015] NSWSC 659
- R v Talimalie; R v Leavai; R v JL [2020] NSWDC 229
- R v Thomas [2007] NSWCCA 269
- R v Tuala [2015] NSWCCA 8
- R v WA [2012] NSWSC 1317