R v AH

[2021] NSWDC 13

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v AH [2021] NSWDC 13

Hearing dates:

16 November 2020, 22 January 2021, 9 February 2021

Date of orders:

9 February 2021

Decision date:

09 February 2021

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence imposed. Orders at [217]-[220]

Catchwords:

CRIME – sentence – multiple counts – charges on Form 1 (x 3) – where offending occurred while in psychotic state – whether moral culpability reduced by reason of drug-induced psychosis – where underlying mental condition

Legislation Cited:

Crimes Act 1900 (NSW) ss 58, 59, 60, 112

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 10A, 21A

Inclosed Lands Protection Act 1901 (NSW) s 4

Prevention of Cruelty to Animals Act 1979 (NSW) s 5

Road Transport Act 2013 (NSW) s 117

Summary Offences Act 1988 (NSW) s 5

Cases Cited:

Ah-Keni v R [2020] NSWCCA 122

Bourke v R [2010] NSWCCA 22

Buckley v R [2021] NSWCCA 6

Bugmy v The Queen (2013) 249 CLR 571

DPP v Burton [2020] NSWCCA 54

DPP v De La Rosa (2010) 79 NSWLR 1

Muldrock v The Queen [2011] HCA 39

R v Engert (1995) 84 A Crim R 67

R v Fang (No. 4) [2017] NSWSC 323

R v Gagalowicz [2005] NSWCCA 452

R v Henry [1999] NSWCCA 111

R v Homann [2018] NSWSC 757

R v Ponfield (1999) 48 NSWLR 327

R v Rhodes [2017] NSWSC 694

Tepania v R [2018] NSWCCA 247

Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146

Skelton v R [2015] NSWCCA 320

Tuncbilek v R [2020] NSWCCA 30

Texts Cited:

None

Category:

Sentence

Parties:

Regina (ODPP)
AH (Offender)

Representation:

Counsel:
Ms S Hall (Offender)

Solicitors:
Ms A Gunn (ODPP)
Ms A Curnick (Offender)

File Number(s):

2019/86347; 2019/97580

Publication restriction:

Non-publication order for complainants or any person under the age of 18 years

Judgment

Introduction

1. This is a sad case where the offending was out of character and committed whilst AH (‘the Offender’) was in a psychotic state. As a result of the offending, the offender’s family has been badly affected. The identity of any minors has been protected by a non-publication order and the use of initials and pseudonyms throughout these remarks.

2. The Offender is to be sentenced for 12 offences, 3 of which are related, and in respect of which guilt has been admitted.

3. There are also 3 Form 1 documents for 8 other charges, which the Offender has asked me to take into account when sentencing for the charges to which they attach.

4. The Offender was born 28 April 1977 and is 43 years of age. The offending took place on a single day, being 18 March 2019. The Offender was arrested that day, and has been in custody since that time.

5. The Offender is to be sentenced for the following charges:

1. H ending 648, sequence 4 – intimidate or intend fear of physical or mental harm (Sarah*), in breach of s13(1) of the Crimes (Domestic and Personal Violence) Act 2007 NSW. This offence carries a maximum penalty of 5 years’ imprisonment and/or 50 penalty units;

2. H ending 648, sequence 6 – assault occasioning actual bodily harm (MH), in breach of s59(1) of the Crimes Act 1900 NSW. This offence carries a maximum penalty of 5 years’ imprisonment;

3. H ending 648, sequence 12 – assault police officer in execution of duty causing actual bodily harm (Lisa Bennett), in breach of s60(2) of the Crimes Act 1900. This offence carries a maximum sentence of 7 years imprisonment, and a standard non-parole period of 3 years imprisonment applies;

4. H ending 648, sequence 13 – another count of intimidate or intend fear of physical or mental harm (DH). The first Form 1 attaches to this charge;

5. H ending 648, sequence 14 – another count of intimidate or intend fear of physical or mental harm (CH);

6. H ending 648, sequence 15 – another count of intimidate or intend fear of physical or mental harm (MH);

7. H ending 648, sequence 28 – assault officer in execution of duty (SC Melanie Greentree), in breach of s58 of the Crimes Act. This offence carries maximum sentence of 5 years’ imprisonment;

8. H ending 648, sequence 32 – cause grievous bodily harm to police officer on duty while reckless as to actual bodily harm (Sergeant Rachael Robins), in breach of s60(3) of the Crimes Act. This offence carries a maximum sentence of 12 years’ imprisonment, and a standard non-parole period of 5 years’ imprisonment applies; and

9. H ending 648, sequence 33 – aggravated break, enter and commit serious indictable offence, namely intimidation, aggravated by use of corporal violence (JA), in breach of s112(2) of the Crimes Act. This offence carries a maximum sentence of 20 years’ imprisonment, and a standard non-parole period of 5 years’ imprisonment applies.

6. Additionally, there are further charges attaching by way of Form 1. By signing the certificates to those documents, I confirm that I have taken those charges, into account in sentencing for the principal charges to which they attach. The charges on the Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community’s entitlement to extract retribution for serious offences: Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 at [65].

7. Attaching to H ending 648/13 are 2 charges on a Form 1, being:

1. H ending 648/3 – wilful and obscene exposure in a public place, in breach of s5 of the Summary Offences Act 1988. This carries a maximum penalty of 6 months’ imprisonment and/or 10 penalty units; and

2. H ending 648/11 – common assault (domestic violence) – MH, in breach of s61 of the Crimes Act. This offence carries a maximum penalty of 2 years’ imprisonment and/or 50 penalty units.

8. Attaching to H ending 648/32 are 4 charges on a Form 1, being:

1. H ending 648/7 – resist officer in execution of duty, in breach of s58 of the Crimes Act. This offence attracts a maximum penalty of 5 years in the District Court, or 2 years in the Local Court;

2. H ending 648/27 – another count of resist officer in execution of duty;

3. H ending 648/29 – another count of resist officer in execution of duty; and

4. H ending 648/30 – another count of resist officer in execution of duty.

9. Attaching to H ending 648/33 are 2 charges on a Form 1, being:

1. H ending 648/25 – commit an act of cruelty upon an animal, in breach of s5(1) of the Prevention of Cruelty to Animals Act 1979. This offence carries a maximum penalty of 6 months’ imprisonment and/or 50 penalty units; and

2. H ending 648/31 – enter enclosed land without lawful excuse, in breach of s4(1)(b) of the Inclosed Lands Protection Act 1901. This offence attracts a maximum penalty of 5 penalty units.

10. The Offender has also admitted guilt to the following related charges on a s166 certificate, and asks this Court to sentence him for that offending:

1. H ending 648/19 – negligent driving (no death or grievous bodily harm), in breach of s117(1) of the Road Transport Act 2013. This offence attracts a maximum penalty of 10 penalty units;

2. H ending 648/21 – another count of common assault; and

3. H ending 648/26 – another count of common assault.

11. The maximum sentences are guideposts representing the community’s assessment, through Parliament, of the seriousness of the offending.

Standard Non-Parole Period

12. The relevance of the standard non-parole period was most recently discussed in the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247 by Johnson J who, at [110] in his judgment summarised the propositions that arise from the legislation, in which the provisions relevant to standard non-parole periods are found in their amended form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.

13. The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The legislation in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors without bringing to account matters that are unique to the offender or the class of offenders.

14. Ultimately though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise together with the objective and subjective matters which are considered in synthesis in accordance with what McHugh J discussed in the decision in Markarian v The Queen [2005] HCA 25. Thus even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply nor that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness.

15. The process is not arithmetical but more intuitive, however the law requires that I determine where on the scale of objective seriousness the offence does fall. The precise positioning of the offence along the scale is a matter of judgment and is not easy to identify but it would seem to me that it must fall somewhere, perhaps halfway between the low end and the mid-range of objective seriousness bringing into account the various factors that I must consider. As I say, however, it does not follow therefore that a standard non-parole period should be adjusted simply by application of some percentage and reached upon the assessment of where on the scale the offence is placed.

16. For reasons which I give below, the standard non-parole periods, to the extent that they apply to the offences charged, have not been applied.

Agreed Facts

17. The following are the facts agreed between the parties which, together with other considerations, are to form the basis for sentencing.

18. The Offender was born on 28 April 1971. The offender and his wife, Sarah*, were residing in San Remo NSW with:

1. Sarah*’s son from a previous relationship, RM (born September 2013);

2. the Offender’s 3 sons from a previous relationship, MH, CH and DH; and

3. Sarah* and the Offender’s 2 daughters, RH and IH.

19. JA resides at Budgewoi NSW with his parents and siblings.

20. The Offender is known to the Adams* family, as DH and NA are close friends, both attending Budgewoi Primary School. JA and MH attend Northlakes High School together.

21. John* resides at Halekulani NSW with his wife and children.

22. The Offender and his family previously had a ‘typical’ relationship. Approximately one month prior to 18 March 2019, the Offender’s behaviour began to deteriorate. The Offender began to speak frequently about God and the bible and would reference needing to fight the devil. The Offender referred to having to command armies in heaven.

Days Preceding Offending

23. On 15 March 2019, NA stayed at the Offender’s home. At approximately 2:30 PM on 16 March 2019, the Offender attended the Adams* residence to drop off DH and NA, as DH was to sleep over at the Adams* residence. Mrs Adams* (mother of NA) had a conversation with the Offender, who then handed her an envelope and stated, “I have a message for you”. The Offender had tears in his eyes when he said this, and told Mrs Adams*, “It’s nothing bad”.

24. Mrs Adams* opened the envelope, which contained a handwritten note stating, “hi Shane and Amanda* from Dabee GOD is telling me to send you this message. The fallen angels are here and it’s almost time. God will let us know where and when”.

25. Mrs Adams*, using mobile service ending 438, sent a text message to the Offender’s mobile (ending 419) which stated, “Hi thanks for the message, who is it from exactly? We can chat about it tomorrow”. The Offender replied at 8:55 PM stating, “Sorry for the late reply..all I know is he said u have strong faith and I don’t need to tell u who it is..u know with ur faith..and u know inside ur stomach and ur mind..I can feel ur faith it is so strong..”. At 11:36 PM the Offender sent a further text message to Mrs Adams* which stated, “U r already replaced .I have to go now..I’ll let use know we’re I am..”. The Offender sent Mrs Adams* a photo of a person, before sending another text message which stated, “Remember there is no Amer..u can’t find this on fb”. Mrs Adams* did not respond to those messages.

26. At approximately 3:30 PM on 17 March 2019, Julia* (the Offender’s mother) came and picked up DH. Amanda* asked if the Offender was okay, and Julia* asked, “Why what has he done?”. Mrs Adams* showed Julia* the note and the text messages, and Julia* replied, “AH had been talking of seeing things in the sky, falling angels coming and MH saw them having a ritual at the caravan park. He has also been reading bibles to the kids”. Mrs Adams* advised Julia* to call Toukley Police as well as Wyong Mental Health.

27. At approximately 4:00 PM the Offender sent a text message to Mrs Adams* stating, “Thanks heaps Amanda* cya soon”. Mrs Adams* replied, “No worries”.

Sequence 13 – Intimidate with the intention of causing DH to fear physical or mental harm

Sequence 14 – Intimidate with the intention of causing CH to fear physical or mental harm

Sequence 15 – Intimidate with the intention of causing MH to fear physical or mental harm

Drive to Bathurst Baptist Church – 18 March 2019

28. At approximately 1:30 AM on 18 March 2019, the Offender shook his three boys, MH, CH and DH awake, and instructed them to get dressed in Mixed Martial Art (‘MMA’) clothes he provided them and to get into the Offender’s car, a silver Mitsubishi Pajero 7 seater 4WD with registration ending 096 (NSW). The back seats in the boot area, which is not enclosed, were down. The three boys were told that they were going to Bathurst, and the Offender appeared wide-eyed.

29. CH and DH sat in the back seat of the car and were told to shut their eyes and not to open them. MH was blindfolded using a towel, and was pushed into the boot by the Offender. The boys were not permitted to wear their seatbelts and were told to lay down so that they could not be seen. The Offender yelled words to the effect of, “If you don’t sit down the gods won’t choose you to come” and “have faith and you will get taken by the gods to fight the demons in the afterlife”.

Sequence 19 – Negligent driving (s 166 certificate)

30. The Offender drove for approximately 6-7 hours, with his driving described as ‘erratic’. The Offender was driving one handed, using the other hand to shave his hair with an electric razor.

31. At approximately 10:00 AM the Offender called Julia* and stated, “Can you let Sarah* know I’m alright and we will be home in about 4 to 5 hours?”. Julia* asked the Offender, “Do you think you need help?” and the Offender replied, “Yes I think so”.

32. Julia* contacted Sarah* to relay what the Offender had told her, asking Sarah* to contact her when the Offender and his sons returned home.

33. The Offender asked MH to begin giving him directions, and MH commenced providing random directions, still from the boot and still blindfolded. MH was told that he was “the chosen one” and that he “had the blood of Christ”.

34. The Offender told MH that they were at a church, and asked MH, “Which entrance do I knock at?”. MH was not permitted to take off the blindfold. The Offender said, “There’s some people over there, do I talk to them?” and MH said, “Yeah”. MH heard the car door open and heard footsteps.

35. The Offender was looking for “God” and ”Jesus”, and went to unknown person’s houses, knocking on doors and asking, “Are you Jesus?” and “Are you God?”. CH heard the Offender asking where the Bathurst Baptist Church was. The children did not hear any voices other than the Offender’s. The Offender made CH and DH assist him to walk.

36. The Offender spoke to a male at the Bathurst Baptist Church, before the Offender and three boys then headed in the direction of Orange, where ‘Dylan’, the father of the Offender’s step-son resided.

37. The Offender and three boys then began to head home, and MH was allowed to take his blindfold off. MH climbed from the boot into the backseat of the car to sit with his brothers. The three boys were not permitted to have any food or drink, as the Offender said that the boys needed to “fast for seven days”. MH was not permitted to use the toilet.

Return to Offender’s Residence on 18 March 2019

38. The Offender returned home at approximately 3:05-3:10 PM, initially appearing ‘normal’. Sarah* contacted Julia* to tell her that the boys had returned home.

39. MH began playing his Xbox and CH and DH began playing PlayStation, and the boys had something to eat before the Offender turned to Sarah* and stated, “You’re not happy that I’m home, are you?”. Sarah* replied, “What are you on about?” and the Offender walked off. The Offender returned and asked for Sarah*’s phone, asking her who she was talking to. Sarah* replied that she was speaking to one of the Offender’s friends, stating that they were worried about him. The Offender slammed Sarah*’s phone down, stating “Don’t effin’ speakin to my friends, they got nothing to do with this”.

40. Julia* attended the Offender’s premises and approached the Offender who was standing in his bedroom. Julia* said to the Offender, “You need help”. The Offender replied, “No I don’t”, before lying on his bed and stating, “I’m so tired”.

41. The Offender got out of bed and walked into the kitchen. The Offender said to Julia*, “You’re not my mother. I am someone else”.

Sequence 4 – Intimidate with the intention of causing Sarah* to fear physical or mental harm

42. The Offender went to Sarah* at the kitchen table and looked at Sarah*, clenching his teeth, and said, “You’re dead. And when I get there, you’re eternally dead”.

Drive to Residence of Alex*; Conduct at Adams* Family Residence on 18 March 2019

43. The Offender approached MH, who was in his bedroom, CH, who was in the loungeroom, and DH who had just showered, and stated, “Come on we are going. You don’t need to take anything”. CH asked, “Can I bring my blanket?” and the Offender replied, “No, we are going to a motel”. The Offender turned to Julia* and said, “We will come around later”, and said to Sarah*, “Book me into the doctors early tomorrow morning to get medication”. The Offender and the three boys left the house.

Sequence 21 – Common assault (CH)

Sequence 6 – Assault occasioning actual bodily harm (MH)

44. The Offender put the PlayStation in the boot, and then said to CH, “You’re too slow” and threw CH into MH who was in the boot, so that CH’s forehead hit MH’s ear, causing a bruise.

45. The Offender drove the three boys to the residence of his friend, Alex*, at Budgewoi NSW. The Offender’s car was parked in the middle of Alex*’s driveway, with the keys in the car, and was moved by Alex* at a later stage.

Sequence 13 – Intimidate with the intention of causing DH to fear physical or mental harm

Sequence 14 – Intimidate with the intention of causing CH to fear physical or mental harm

Sequence 15 – Intimidate with the intention of causing MH to fear physical or mental harm

46. The Offender told the three boys to take their clothes off, stating they needed to “be light” and that the demons could not see them if they did not have clothes on. CH and DH protested though undressed themselves, while MH said that he didn’t want to, and was forcibly stripped by the Offender.

Sequence 3 – Wilful exposure (to be taken into account on a Form 1 attaching to sequence 13

47. The Offender also undressed himself, placing the clothing inside his car.

Sequence 11 – Common assault (MH)

48. The Offender and the three boys began walking up the hill. Each time that MH, who was crying, would attempt to cover up, the Offender would hit MH in the back of the head with an open palm.

49. Each time the Offender would see a taxi he would say to the three boys, “It’s a police officer” and would make the boys hide in a ditch.

50. A number of persons observed the Offender and his three boys walking on the street naked.

48. At approximately 4:15 PM, Mr and Mrs Adams* and two of their children left home to take MA to Wadalba. JA was left at home by himself. Amanda* was the last to leave, closing the wooden front door with the key in the door. Amanda* closed the front screen door, which was left closed but unlocked.

Sequence 33 – Aggravated break, enter and commit serious indictable offence namely intimidation (aggravated – use corporal violence on JA)

52. The Offender and the three boys ran further up the road to the Adams* residence. The door was locked, however the key was still in the deadlock. The Offender opened the closed screen door and knocked loudly, and JA called out, “Who is it?” and “Wait a minute”. The Offender turned the key to the wooden front door and went inside.

53. The Offender told the three boys to sit behind some boxes near the door (inside the house, near the entrance), and the Offender entered the house.

54. The Offender was observed to be naked, as were his three children, and he was yelling loudly, blinking, rubbing his head and ‘picking at himself’.

55. JA went to the kitchen and grabbed a steak knife, and approached the Offender who said to him words to the effect of, “They’re here, they’re going to get you”, asking where JA’s mother was, saying “the demons are here” and that only JA’s mother could protect them. The Offender also referred to JA’s dog and JA having faith. JA, hoping to get help from his neighbours, told the Offender that his mother was next door. JA observed there to be urine on the floor, from one of the Offender’s children.

56. As the Offender got closer to JA he grabbed onto JA’s arm, up the top near the muscle area using one hand, for 2-3 seconds, and JA swung the steak knife towards him. JA stated that “he latched onto my arm, not with a firm grip”. “I don’t know if he was trying to assault me but I’m pretty sure he, like, he grabbed me as in to talk to me or […] or tell me something”. The Offender stood back and was saying that JA was “his leader”.

57. JA ran out the sliding door, threw his phone over the Colorbond fence, and then jumped over the fence to his neighbour, John*’s, property.

58. The three boys sat at the boxes for approximately two minutes before the Offender said to the three boys, “Come on, come this way”. JA heard the Offender say words to the effect of, “Follow the leader”.

Sequence 25 – Act of cruelty upon an animal, namely a dog (to be taken into account on a form 1 attaching to sequence 33)

59. The Offender and the three boys walked out the back, where the Offender kicked the Adams*’s dog. JA heard his dog make “a pained sort of noise” from the Barnett’s property.

60. The Offender sat in the courtyard of the Adams* residence and chanted, “You have to have faith”, making the three boys repeat it.

61. At 4:33 PM Amanda* received a text message from JA which stated, “I’m Mm M M M I’mm M Mum”. Amanda* replied, “Hu” and “You ok (JA)”.

62. JA saw John* and ran into the John*’s garage, shaking and crying and still holding a knife, and said words to the effect of, “My friend’s Dad is in the house naked and he is trying to get me and he is with his kids”. John* walked to his back verandah and looked towards the Adams* residence, where he observed a male person and three young children, all completely naked.

63. John* told his daughter, KB, to go inside and lock the door, and to call the police. KB and JA went inside, and KB called 000.

64. Police were called at 4:38 PM, with KB advising police that the Offender was next door and was naked in the backyard with his three kids. KB stated that JA had been home alone and had come to her house to get help. KB stated that the Offender and his children appeared to be inside the Adams* residence and that she could hear yelling, and that the Offender was “talking about devils and things”.

65. At approximately 4:38 PM, JA phoned Amanda* from mobile service ending 709, stating “Mum, AH ran into our house naked with his kids naked. I’m at the neighbours”. Amanda* asked, “Which neighbours?” and JA replied, “I’m at John*’s”. Amanda* replied, “Do not leave John*. Stay with John*”.

66. John* got a claw hammer from his garage, and went to request assistance from ‘Luke’ who resides at Halekulani. John* stated, “Mate, I might need a hand as there is a naked man with kids next door”. Luke replied, “No worries”, grabbing a hockey stick from the back of his car. John* and Luke waited outside the front of the Halekulani property until a police wagon arrived.

67. The Offender was looking for NA, stating “I know you’re in here, (NA)” and “there’s no point of hiding”. NA was not home. The Offender and the three boys then went back into the house, into NA’s room. The Offender was chanting and made the three boys hold hands and yell “Ho, ha”. The Offender gave CH a dressing gown, DH a pair of shorts, and MH a pillow case that he ripped a hole in the top of. The Offender began doing martial arts in NA’s room and told the three boys to close their eyes and open them, and that they would see a bright light.

Sequence 31 – Trespass (to be taken into account on a Form 1 attaching to sequence 33)

68. The Offender and the three boys went outside via the back door, and the Offender made the three boys jump the fence to go to the house next door (the residence of John*).

69. Police officers (Senior Constable Mitchell Pope and Senior Constable Troy Duncan) arrived at 4:41 PM, and told the Offender to stop, and the Offender made the three boys sprint underneath a section of the house, via a ‘hatch’. As a result, DH was pushed over and trampled on, resulting in grazes. The Offender made the three boys run to the back, saying that police could not see them.

Sequence 26 – Common assault CH (s 166 certificate)

70. The Offender stated that the ‘cops’ were “demonic people” and “demons that go live in the underworld”. The Offender told CH to go to the other side, before tackling CH to the ground and stating, “Stick down and they won’t see you”.

71. Police officers, who had also jumped the Colorbond fence, attempted to get the Offender to come out and to allow the three boys to come out, however the Offender refused. The police officers asked if the kids were safe, and the Offender told the officers to “Fuck off”. This continued for approximately 5 minutes, with the Offender refusing to allow the three boys to leave. The Offender continued to tell the three boys that police could not see them.

72. At approximately 4:50 PM Mr and Mrs Adams* arrived home. Amanda* went to John*’s backyard and observed police and John* under the house.

73. The Offender said to MH, “Is this your time?” and MH said, “What are you talking about?”. The Offender told MH to go out, and made MH go out to the police officers who were waiting.

74. CH and DH left the residence next, approximately 4 minutes later, followed by the Offender.

Sequence 7 – Resist officer in execution of duty (Senior Constable Mitchell Pope) (to be taken into account on a Form 1 attached to sequence 32)

Sequence 27 – Resist officer in execution of duty (Senior Constable Troy Duncan) (to be taken into account on a Form 1 attached to sequence 32)

75. Police said to Shane, John* and Luke, “When he comes out tackle him”, referring to the Offender. The Offender exited John*’s back deck slowly and began to make attempts to run up the rear wooden stairs, at which point one officer went to grab the Offender, who started waving his arms. Shane, John*, Luke and police moved in and grabbed the Offender, who was thrashing about and attempting to fight them off.

76. They got the Offender off the stairs and onto the ground, where Shane wrapped up the Offender’s legs with both arms like a bear hug. The Offender continued to thrash about as police attempted to handcuff him. Police told the Offender, “Roll over, roll over”. The Offender did not comply and so he was rolled onto his front to enable police to finish handcuffing him.

77. Shane went into his home and got clothing for the Offender’s three boys.

78. Police had hold of either side of the Offender’s arms and were walking the Offender, who was thrashing about, and said to the Offender, “Stop resisting”. The Offender was placed under arrest at approximately 4:58 PM.

79. The Offender stated to police that he had not “had anything” that day, stating that he had not consumed ‘ice’ and “had a couple of bongs, that’s it”. The Offender denied any history of mental illness, though stated that he was taking anxiety tablets. The Offender was asked to explain what had occurred, and responded, “I don’t know”.

80. Police contacted Julia* at approximately 5:27 PM, and Julia* drove to the Halekulani address and collected the three boys. Julia* took the three boys to Wyong Hospital for a check-up.

81. The Offender was placed into a caged vehicle, and at approximately 6:25 PM the Offender arrived at Wyong Police Station. At the time of arrival, the Offender remained completely naked.

Conduct at Wyong Police Station on 18 March 2019

82. The Offender sat in the dock area of the custody room. Senior Constable Lisa Bennett (‘SC Bennett’) obtained a blanket and opened the door, handing the blanket to the Offender. The Offender said words to the effect of, “It’s not normally me, I’m not normally like this, there is something wrong with me”. SC Bennett closed and locked the door to the dock.

83. The Offender predominantly sat crouched over on the ground or bench seat of the dock. At approximately 6:56 PM, SC Bennett opened the door and asked the Offender to leave the dock area and stand at the custody bench. The Offender wrapped himself in the blanket that had been provided and complied with this request. The Offender was calm at that time.

84. The Offender made a number of requests of SC Bennett to make phone calls to his mother, his ‘mate’ whose house he had left his car at, and his wife. The Offender was advised that it was not appropriate for him to make calls to any of those persons, and he accepted this.

85. At approximately 8:30 PM, the Offender was offered an interview in relation to allegations that he threatened Sarah*. The Offender exercised his right to silence.

Sequence 32 – Cause grievous bodily harm to police officer (Sergeant Rachael Robins) on duty reckless as to actual bodily harm

86. At approximately 9:30 PM the Offender, who had been calm and compliant during his time at the Police Station, was offered a refreshment by Sergeant Rachael Robins (‘Sgt Robins’) and requested a cup of tea. Sgt Robins opened the door of the Offender’s dock to hand the Offender his tea. The Offender then pulled Sgt Robins by the hair, pulling her head down, and struck her in the nose twice and her cheek with his knee. Sgt Robins heard a ‘crunching sound’ and could see blood dripping onto the floor of the charge room.

87. Sgt Robins attempted to push the Offender back towards the dock, however the Offender pushed her aside and she landed on the floor. Sgt Robins got up and ran after the Offender, yelling out loudly.

Sequence 12 – Assault police officer (Senior Constable Lisa Bennett) in execution of duty and occasion actual bodily harm

88. Senior Constable Lisa Bennett (‘SC Bennett’) ran into the custody area where the Offender was at the end of the charge bench. SC Bennett put her arms up in an attempt to push the Offender backwards, and collided with the Offender. The Offender attempted to push past SC Bennett, and began to wrestle with her.

Sequence 28 – Assault officer while in the execution of her duty (Senior Constable Melanie Greentree)

89. A short time later Senior Constable Melanie Greentree (‘SC Greentree’) ran into the custody room and assisted SC Bennett’s effort to gain control of the Offender. The Offender ran towards SC Greentree with his head down, with the top of his head colliding with SC Greentree’s stomach area, just below her rib cage. SC Greentree grabbed the Offender by his arms and attempted to push him back towards the custody area. SC Bennett came to SC Greentree’s assistance, grabbing the right arm of the Offender, while SC Greentree held his left arm.

Sequence 29 – Resist officer (Constable David Mason) in execution of duty (to be taken into account on a Form 1 attached to sequence 32)

90. Constable David Mason (‘Cst Mason’) entered the custody room and assisted SC Bennett and SC Greentree, and police were able to get the Offender onto the ground.

Sequence 30 – Resist officer (Sergeant Colin Trigg) in execution of duty (to be taken into account on a Form 1 attached to sequence 32)

91. Sergeant Colin Trigg (Sgt Trigg’), who was in the Supervisor’s Office carrying out computer work, heard a yell and glanced at the monitor beside him. Sgt Trigg observed Sgt Robins being assaulted by the Offender and ran from his desk through the doorway of his office. Sgt Trigg yelled, “Charge room” to the other officers in the station, and ran towards the Charge Room.

92. Sgt Trigg observed the Offender face down on the floor between the southern end of the Custody Counter and the interview room exit door, with SC Bennett, SC Greentree and Cst Mason on the floor struggling with the Offender in an effort to restrain him. The Offender continued to resist police attempts to restrain him and was lashing out with his arms and legs.

93. Sgt Trigg grabbed hold of the Offender’s upper body, waving off Sgt Robins who was attempting to assist, stating, “Get Rachael out of here”. Sgt Trigg stated to SC Bennett, “Lisa let go of him and go with Rachael. I’ve got this, just take care of Rachael”. SC Greentree went to the custody sergeant’s room to attend to Sgt Robins.

94. Sgt Trigg continued to restrain the Offender, who continued to struggle and attempted to hit out with his arms and legs. Eventually police were able to handcuff the Offender to the rear.

95. The Offender sat on the ground on his hands and knees, handcuffed to the rear. The Offender remained quiet and did not show any further signs of aggression.

96. SC Greentree attempted to administer first aid to Sgt Robins, who was observed to have blood across her uniform and face, and her nose was swollen, bruised and out of alignment. Sgt Robins was also observed to have a deep laceration to the bridge of her nose and a deep laceration approximately 3-4cm across her upper cheek.

97. An ambulance was called, arriving at approximately 9:55 PM. Sgt Robins was conveyed to Wyong Hospital for treatment at approximately 10:16 PM.

Injuries to Sergeant Robins

Treatment at Wyong Hospital

98. Sgt Robins was admitted to the Emergency Department of Wyong Hospital on 18 March 2019, where she was observed to have an obvious deformity to her nose, which was deviated to the right, and was bleeding. Sgt Robins was found to have comminuted, moderately displaced nasal bone fractures, with no septal haematoma visible.

99. Sgt Robins was also observed to have a 2-3cm laceration under her right eye (over her right cheek bone) and 1cm laceration over her nasal bridge, both of which required sutures.

100. An obtoscope exam revealed deviation of Sgt Robins’ nasal septum, with swelling of her left nostril.

Treatment at Gosford Hospital

101. Sgt Robins was admitted to Gosford Hospital on 19 March 2019 and diagnosed with comminuted, moderately displaced nasal bones fractures.

102. Hospital staff observed:

1. facial swelling and asymmetry of the nose; and

2. bilateral black eyes, with ongoing headache and nausea.

Treatment by Dr Chaithan Reddy

103. Sgt Robins was referred to Dr Chaithan Reddy, a Plastic and Reconstructive Surgeon, whom she saw on 26 March 2019.

104. Clinical assessment of Sgt Robins on 26 March 2019 revealed the following injuries, consistent with post traumatic nasal deformity and nasal obstruction:

1. bruising over the bridge of her nose and bruising and swelling below both eyes;

2. a healed scar over the bridge of her nose and right cheek region;

3. a deviated nose with a palpable bony step;

4. very little airflow through the left nasal airway with audible nasal obstruction on inspiration (breathing in);

5. altered sensation in the cheek region; and

6. very mild diplopia (double vision) on the extreme right lateral (sideways) gaze.

105. Subsequent review of Sgt Robins’ CT scans revealed nasal bone deviation and comminution (multiple fragments), with the septum deviated to the left and very little nasal space noted on the left.

106. Sgt Robins underwent surgery on 29 March 2019, entailing closed reduction of her nasal bones and septum.

107. Subsequent review on 3 June 2019 revealed:

1. a healed but inverted scar on Sgt Robins’ cheek, with associated swelling above the level of the scar; and

2. residual left sided nasal obstruction, with a further CT scan indicating reduced left sided nasal airway space with septal deviation. There remains the possibility of a formal rhino septoplasty procedure in addressing Sgt Robins’ persisting nasal obstructive symptoms.

108. The ultimate diagnosis of Dr Reddy was that Sgt Robins sustained significant facial injuries, including facial scars and a fractured nose, with associated compromise in her nasal airway as a result of the incident. Further surgery is required to optimize Sgt Robins’ right cheek scar and address her nasal concerns, although a persisting degree of nasal obstruction may be inevitable despite surgical correction.

Injuries to Senior Constable Bennett

109. SC Bennett was found to have suffered a left chest wall soft tissue injury.

110. A CT scan of SC Bennett’s chest revealed the following:

1. multiple enlarged lymph nodes in the prevascular, paratracheal, left hilar and right hilar location;

2. that the lungs demonstrated a nodule in the right lower lobe measuring 4mm;

3. Bibasal Atelectasis with patchy airspace opacity in the left lung base; and

4. mild hepatic steatosis of the liver with mild hepatomegaly.

111. Those are the Agreed Facts.

Crown Material

112. Along with the sentence bundle, the Crown tendered the following material during the sentence hearing:

1. victim impact statement of Sarah*;

2. a letter from Georgina Anderson dated 10 October 2020;

3. a report of Mr Rice dated 15 July 2019;

4. photographs of the Offender in police cells; and

5. a report of Professor Paul Fagan dated 14 February 2020.

Victim Impact Statement Sarah*

113. In her victim impact statement, marked Exhibit B in the sentence hearing, Sarah* observed how the day of the subject offending was a day in which her life was turned upside down and her family “broken beyond words”.

114. She recounted that the offending and ultimate incarceration of the Offender has led to her becoming, in effect, a single mother, who is ineligible to receive any sort of government financial support, due to her being a citizen of New Zealand. In particular, she refers to the stress experienced, stating that she “lost copious amounts of weight”, as well as stating that “the fear instilled in me that day (by the Offender)” is something that she still struggles to overcome today.

115. Sarah* concluded that she is “tired of listening to others excuse the Offender’s actions as ‘out of character’”, given the physical and emotional toll that they have taken upon other people, and that she will never forgive him for those actions.

Letter from Georgina Anderson

116. Ms Anderson, registered psychologist and counsellor for Sarah*, penned a letter (Exhibit C) which confirms that her victim impact statement is consistent with both her account in counselling, as well as her clinical presentation.

117. Ms Anderson also notes that Sarah* continues to meet the criteria for Post-Traumatic Stress Disorder, and has “lost a large amount of weight, has trouble sleeping and relaxing, experiences panic attacks, flashbacks and freeze responses”.

Report of Mr Rice

118. Mr Rice is a mental health clinician who treated JA following the home invasion. His letter containing initial consultation notes was marked Exhibit D in the sentence hearing. Mr Rice notes that JA has developed various symptoms since the incident, including a fear of being home alone, difficulty sleeping, nightmares and anxiety.

119. Mr Rice has worked on strategies to assist JA in dealing with the trauma from the offending and alleviate his anxiety.

Report of Professor Fagan

120. Professor Fagan provided comment on the extent of the facial injuries suffered by Sergeant Robins, inflicted by the Offender and as described previously. While the Professor noted that Sergeant Robins was “pleased” with the cosmetic result of the surgeries performed to realign parts of her nose and face, he also observes that she continues to have significant nasal obstruction, has a 4cm scar below her right eye, ongoing symptoms involving her eyes and nose, as well as the development of migraines.

121. Professor Fagan assessed Sergeant Robins as having suffered a 7% Whole Person Impairment.

Offender’s Subjective Case

122. The Offender’s subjective case comprised the following documents:

1. report of Dr Richard Furst dated 19 September 2020;

2. NSW health discharge summary 30 March 2019;

3. one photograph of the Offender in police cells;

4. a number of certificates of completion obtained by the Offender while in custody, demonstrating his commitment to rehabilitation;

5. character reference by Sean Tynan dated 7 October 2020;

6. character reference from Alex* dated 9 October 2020; and

7. affidavit of Julia* dated 16 October 2020 relating to a number of Apprehended Violence Orders taken out against the Offender.

Psychiatric Report of Dr Furst

123. The report of Dr Furst was marked Exhibit 1. Dr Furst assessed the Offender on 3 September 2019 for 1 hour, on 10 January 2020 for 30 minutes, and again on 27 July 2020 for about 40 minutes.

124. Dr Furst noted that the Offender was born in Wentworthville, with no ‘apparent’ birth complications, and moved to the Central Coast at about 3 years of age. The Offender denied having any history of mental health problems in his adolescence or 20’s, though reported developing symptoms of depression and anxiety in his 30’s, for which he was prescribed anti-depressant medication. This was attributed to the behaviour of his former partner and mother of his 3 sons, who apparently suffered from mental illness, and was frequently violent towards the Offender. The Offender reported becoming progressively isolated, and stopped working to look after his three children over a number of years prior to his current relationship with Sarah*.

125. The Offender reported suffering from depression for 5 of the 8 years of his previous relationship, and continued taking antidepressant medication until a few weeks prior to the subject offending. He also reported smoking cannabis on a regular basis from the age of 18, including heavy use of up to 4-5g grams per day in his late teens and twenties.

126. The Offender also reported turning to drugs to cope with the death of one of his best friends in September 2018, which he consumed on a regular basis leading up to his offending in March 2019. He reported that this caused him to become decompensated and paranoid, developing beliefs that the devil had taken his friend and was coming for his family. While he denied hearing voices, he reported depressive symptoms and feelings of hopelessness, and these beliefs persisted for about one month in the lead up to the subject offending.

127. Dr Furst observed the Offender on 3 separate occasions, and noted him to be lucid and coherent on all occasions. He also noted that the Offender demonstrated significant remorse about his offending, and expressed an eagerness to take steps to repair his relationship with his family and never use drugs again.

128. Dr Furst opined that the Offender met the diagnosis for Recurrent Major Depressive Disorder, dating back over the last several years, as well as Substance Use Disorder and Substance-Induced Mental Disorder. A long history of substance abuse and dependence was also noted. Dr Furst noted that the Offender used illicit drugs “most likely as a maladaptive means of coping with the loss of his best friend, associated grief and ongoing symptoms of depression” (p 7).

129. Dr Furst stated his belief that there is “little doubt” that the subject offending was driven by the Offender’s paranoid thinking and delusions. These symptoms included apparent visual hallucinations, especially when using methylamphetamine, and that such symptoms of psychosis prevented the Offender from an awareness of the wrongfulness of his actions (p 8).

130. Importantly, Dr Furst expressed the view that the offending could be summarised as follows:

The primary issue in cases involving drug consumption on a regular basis leading to psychosis is whether the psychotic episode can be primarily attributed to the effects of drug ingestion and the psychotic episode triggered by drug use resolves within 4 weeks, or less of the drug use stopping the drug in the case of drug-induced psychosis, or whether there is an underlying mental illness, such as schizophrenia, that is either exacerbated or triggered by drug use and persists beyond that 4-week period, which would generally be regarded as a sign of a more serious mental illness underlying the effects of drug use, such as schizophrenia.

In my opinion, [the Offender] falls into the former category, rather than the latter group.

131. This finding is, in my view, significant, as it will direct my findings in terms of moral culpability and objective seriousness, as well as other factors including prospects of rehabilitation and the need for general and specific deterrence. I will return to this issue shortly. The psychiatrist’s opinion was that the offending was due to a psychosis induced by self-intoxication, rather than an underlying psychiatric condtion.

132. Overall, Dr Furst opined that the Offender was suffering from a recurrent major depressive disorder and a substance-induced mental disorder (drug-induced psychosis) at the time of his offending, and has since recovered from the acute effects of the drug use, as well as the depression that developed after the death of his friend in September 2018. Unfortunately Dr Furst did not, however, explicitly indicate the extent to which either condition contributed to the subject offending (p 8). That is to say to which either condition, separately or together, contributed to the subject offending.

133. Dr Furst recommended a coordinated treatment plan including prescription antidepressant medication, drug and alcohol services, and the services of a psychologist. Dr Furst also opined that the Offender has good prospects of successful rehabilitation, and presents a relatively low risk of reoffending.

Oral Evidence from the Offender

134. During the course of the sentence hearing, the Offender gave oral evidence. I found him to be an impressive and credible witness, and accept all of the evidence that he provided.

135. The Offender stated that it was not until 2 or 3 months after the subject offending that the symptoms of drug-induced psychosis completely subsided, and he did not obtain a full appreciation of his actions until after that time (T7.35-45). He confirmed that he had been experiencing psychotic thoughts, including a belief that the devil was coming to take himself and his family, for about one month in the lead up to the subject offending (T13.38). Under cross-examination from the Crown, the Offender stated that he had no idea that consequences such as hallucinations or the subject offending may have arisen from his drug-taking, otherwise he “would have stayed away from it” (T16.35). From the time of becoming aware of what he had done, the Offender described experiencing “hurt and pain” (T8.2).

136. The Offender gave evidence that he began substituting his prescribed anti-depressant medication for the illicit drugs, as he felt that it gave him more of a benefit. However he did not become aware of the adverse mental effects that they caused him until he was advised by his partner, Sarah*, the day before the subject offending, at which time he elected to consume the remaining 3 or 4 grams, rather than disposing of them (T8.27). When I enquired with the Offender as to why he continued taking methylamphetamine upon becoming aware of the effects it was having upon him, the Offender stated “I was weak… I should have been strong but I was weak” (T15.10). He later clarified that this decision was “the worst decision of (his) life” (T17.38).

137. When queried as to why he failed to seek help from either his friends or professionally, the Offender stated that he “didn’t want them worried and stressed out about me” and “didn’t want to burden them” (T9.15). He also stated that he did not believe that he needed professional help at that time, however, he is now prepared to engage in programs to assist him in dealing with future problems, rather than turning to drugs. The Offender further acknowledged that, upon release, he will need to see his doctor and psychiatrist to continue with a mental health treatment plan, as well as recommence working and “slowly building up (his) life and (his) business” (T12.16).

138. In respect of remorse, the Offender stated that he was “disgusted” and “disappointed” in himself, due to the hurt, stress and pain that he has caused everyone, and is “eternally sorry” for what he has done (T10-11). At the end of his evidence, the Offender apologised to all of the victims impacted by his offending “for any emotional, physical, mental, hurt, pain, stress, anxiety, fear, depression that (he) caused”, and expressed that he was “deeply sorry to everyone” (T23.41). I accept this evidence, and intend to make a positive finding of remorse.

Submissions

Crown Written Submissions – MFI 2

139. The Crown commenced its written submissions by providing a table summarising the matters for sentence, as well as the Form 1’s and s166 matters.

140. Under the heading ‘Procedural History’, it was also conceded by the Crown that the Offender’s early guilty plea would entitle him to a 25% discount on sentence. I intend to allow for this discount, given the timing and utilitarian value of his early plea.

141. Referring to the intimidation sequences, being 4, 13, 14 and 15, the Crown submitted that “rigorous and demanding consequences” for perpetrators are necessary, so as to protect partners, family members and the wider community.

142. In relation to sequence 33, being the aggravated break and enter charge, the Crown referred to the factors identified in R v Ponfield (1999) 48 NSWLR 327, although conceded that none of those factors are present, meaning that the seriousness of this offending is not enhanced in that way. The Crown did, however, submit that the offending was aggravated by the “substantial emotional harm” suffered by the victim, JA (para 11). It was also submitted that offences of this type infrequently involved significant planning or premeditation, and therefore the absence of either should not reduce the seriousness to any material degree in this sentencing exercise.

143. Turning to sequences 12, 28 and 32, being the assaults on police, the Crown referred the Court to the remarks of Spigelman CJ in Re Attorney-General’s Application (No 2 of 2002) in submitting that the Courts should support the authority of the police in the performing of their duties, and that assaults upon police are serious offences, requiring a significant element of deterrence, including giving ‘full weight’ in any imposed sentence (para 14).

144. On the issue of the Offender’s intoxication, the Crown referred to the matters of DPP v Burton [2020] NSWCCA 54 and Bourke v R [2010] NSWCCA 22 to submit that self-induced intoxication cannot be taken into account as a mitigating factor in and of itself, nor mitigate the penalty, however, it may in some circumstances explain an offence. The Crown also observed that an ‘out of character’ defence may exist, however it has almost never been applied, and the onus falls upon an offender to demonstrate that the intoxication was causative (para 21). This issue was amplified in further written and oral submissions.

145. The Crown also referred the Court to the matter of R v Fang (No. 4) [2017] NSWSC 323, in submitting that where there is correlation between a mental illness defence and disease of the mind, as arising from an offender’s self-induced intoxication, then it too may be caught by s21A(5AA) of the CSP Act. The same authority was further cited to submit that an offender’s lack of awareness that their drug use may incite adverse behavioural changes, including violence, does not mitigate their culpability, but rather actual knowledge of the fact would instead be a matter of serious aggravation.

146. Reference was also made to R v Henry [1999] NSWCCA 111 in submitting that while drug addiction is a relevant factor on sentence, it is not, of itself, a mitigating circumstance, and one’s decision to persist with drug use, rather than seeking assistance, is a matter of choice, as was this Offender’s voluntary cessation of medication (para 23). This topic of the relationship between self-induced intoxication and psychosis was one which elicited further written submissions from both parties, which I will refer to in due course.

147. In terms of objective seriousness, the Crown submitted the following:

1. sequences 13, 14 and 15 (offences against MH, DH and CH) – above mid-range, being aggravated by the Offender being in a position of trust as their father;

2. sequence 4 (intimidation) – at the mid-range;

3. sequence 22 (aggravated break, enter and commit serious indictable offence) – at the mid-range;

4. sequence 32 (cause GBH to police officer) – at the upper end of the mid-range;

5. sequence 12 (assault police, Lisa Bennett) – at the mid-range; and

6. sequence 28 (assault police, Melanie Greentree) – at the mid-range;

148. The Crown finalised its submissions by observing that the charges arose within a course of conduct, however the offences are separate and discrete. The Crown did also, however, concede that there are some factors of the Offender’s criminality which overlap.

Offender Written Submissions – MFI 2

149. Submitting on objective seriousness, counsel for the Offender grouped the offences into 3 separate categories, described as follows:

1. the offences involving the Offender’s 3 sons, and then-wife, occurring in the early hours of 18 March 2019. Counsel submitted that those committed against the children, while frightening, involved no violence, and while those against his then-wife were “slightly more indicative of violence”, all offences fell at the lower end of objective seriousness;

2. the offences that lead to and culminated in the aggravated break and enter offence. Those offences involving the Offender’s sons did involve limited violence, and would have been distressing, although it was submitted that they fell at the lower end of objective seriousness. With respect to the actual break and enter offence, counsel submitted that while the victim would have been frightened and confronted, the grab of the arm was “less of an assault and more of an attempt to talk to him”, and that it fell either just below or at the mid-range of objective seriousness; and

3. the offences which occurred at the police station once the Offender was in custody. Counsel submitted that, given the extent of the injuries caused, the charge of causing grievous bodily harm to a police officer would “clearly be in the mid-range of objective seriousness”, taking into account the circumstances in which it occurred and the extent of the injuries inflicted. In relation to the additional assaults (sequences 12 and 28), counsel for the Offender submitted that the offending fell at either just below or at the mid-range.

150. Counsel for the Offender also submitted that the Offender’s early guilty plea ought to attract a discount on sentence. I accept this submission, and intend to reflect the utilitarian value of the Offender’s early guilty plea through a 25% reduction in sentence.

151. Counsel also submitted that, on the basis of the material contained in the report of Dr Furst, there is a basis upon which the Court may make a finding of remorse and genuine contrition. I would make that finding based on the Offender’s evidence alone.

152. Turning to prior offending and antecedents, counsel observed that the Offender has a lack of criminal history, save for a break and enter conviction in 2008. On that basis, it was submitted that his record, in conjunction with this being his first custodial sentence, may entitle him to some leniency. I accept this submission, and take into account the Offender’s prior good character. These factors also warrant a finding of special circumstances.

153. Counsel for the Offender submitted that the mental health of the Offender was a relevant consideration for sentence, insofar as the diagnosis by Dr Furst of a drug-induced psychosis being present at the time of offending. For this reason, counsel submitted that the Court should have regard to the principles in DPP v De La Rosa (2010) 205 A Crim R 1, and consider that, by reason of mental illness:

1. the Offender’s moral culpability may be reduced;

2. the need for denunciation is reduced;

3. the Offender may be an inappropriate for general deterrence;

4. a custodial sentence may weigh more heavily on the Offender;

5. it may eliminate the significance of specific deterrence; and

6. conversely, such a mental illness may cause the Offender to be a greater danger to the community.

154. I pause to observe that matter (f) referred to above was not a submission made on behalf of the Offender, but rather a recitation of the principles enunciated in De La Rosa.

155. In conjunction with that submission, counsel also referred to remarks of Gleeson CJ in R v Engert (1995) 84 A Crim R 67, who at [67] noted that the relationship between a mental disorder and the commission of an offence goes to the circumstances of the individual case to be taken into account in the application of the relevant principles.

156. In my view, a distinction exists between a mental disorder and a psychotic state brought on by a decision to consume intoxicating drugs.

157. Counsel referenced the report of Dr Furst in submitting that, notwithstanding the fact that the psychosis experienced by the Offender was induced by his abuse of illegal drugs, the Court could still consider that he is less of a vehicle for both general and specific deterrence, because of the psychosis he was experiencing at the time. This was particularly so because this Offender was not one with a longstanding addiction to drugs, but rather was ‘self-medicating’ to deal with the grief of a friend’s death and a more pervasive depressive condition. It was also acknowledged that this may impact upon considerations of public protection, however counsel submitted that as this situation developed in a very specific set of circumstances, the Court may view the Offender as somebody who poses no further threat to the public.

158. Turning to prospects of rehabilitation, counsel highlighted the fact that the Offender has willingly reduced and even ceased his cannabis use as demonstrating his capacity to abstain from drugs “when he sets his mind to it” (para 29), as well as his indication of commitment to accessing ongoing treatment to address his major depressive disorder. In this respect, counsel submitted that the Court could find positive prospects for the Offender’s rehabilitation, and the likelihood of reoffending is low. For reasons which I will outline shortly, I accept both of those submissions.

159. Counsel also made submissions on the impacts of COVID-19 in NSW prisons, including reduced visitations. While it is my understanding that visitations have since resumed, I have nonetheless taken these submissions into account.

Crown Oral Submissions – 16 November 2020

160. The Crown commenced oral submissions with reference to counsel for the Offender’s submission that the principles in De La Rosa could be applied with respect to the Offender’s mental condition at the time of offending. In this regard, the Crown submitted that while the principles may have some application, they should not arise in full force in mitigation.

161. It was, however, conceded by the Crown that a drug-induced psychosis could not be considered any less significant than a mental disorder of modest severity, and therefore the mental symptoms being experienced by this Offender may have come under the ambit of what De La Rosa was considering.

160. In particular, it was submitted that because the intoxication was self-induced, the purposes for sentencing would not be completely mitigated, and matters such as general deterrence still have some role to play. While it was initially conceded by the Crown that, at the lowest, the Offender’s moral culpability may be reduced “to some extent” (T35.37), this concession was later withdrawn in additional oral submissions. Overall, the Crown submitted that the Court should consider, on the one hand, that there is mental illness present (notwithstanding that it was caused by drugs), but weight should be given to the fact that self-induced intoxication cannot mitigate sentence, as per s21A(5AA) of the CSP Act.

161. Turning to the Offender’s awareness of the consequences of his drug-taking, the Crown submitted that the Offender, having given sworn evidence that he knew he made a bad decision in consuming the drugs rather than flushing them, demonstrated at least some level of recklessness. The Crown did not, however, put it as high as an abandonment of responsibility on the part of the Offender.

Offender Oral Submissions – 16 November 2020

164. During the course of oral submissions, counsel for the Offender echoed a number of matters raised in written submissions, noting in particular that the Offender acted in circumstances where he did not appreciate the effect that the drug-induced psychosis was having upon him, a matter which was further concreted by a lack of warning from those surrounding him that he had been acting in any sort of a strange manner, despite some of them noticing that he was doing so. For this reason, counsel submitted that the Court may take the drug-induced psychosis into account as a mitigating factor due to a lack of any previous insight that behaviour such as the subject offending may have occurred, notwithstanding that the intoxication was self-induced.

165. Counsel also addressed on the aggravating and mitigating factors for each offence, most of which were ultimately agreed upon by both parties during the course of submissions. I have taken these submissions, including the differences of opinion, into account in making findings below.

Crown Additional Written Submissions – MFI 3

166. The Crown provided further written submissions addressing the Offender’s drug-induced psychosis, and the operation of s21A(5AA) of the CSP Act.

167. The second reading speech of the Crimes and Other Legislation Amendment (Assault and Intoxication) Bill, which led to the enactment of the new section, was referenced, including an excerpt stating that the change in legislation “reflects the view that the choice to become intoxicated should not lead to reduced culpability”.

168. The Crown referred to both R v Fang (No. 4) [2017] NSWSC 323 and the remarks of Campbell J in R v Rhodes [2017] NSWSC 694, at [97], where it was affirmed that s21A(5AA) has application where a relevant mental condition was itself a transient effect of the person’s use of drugs on the occasion of his offending.

169. The decision of Ah-Keni v R [2020] NSWCCA 122 was also referenced to support the submission that this Offender’s state of psychosis was due entirely to his abuse of drugs, rather than any mental illness which was affecting him.

170. On the question of whether the Offender was aware that the effects of methylamphetamine use could include the behaviours comprising the subject offending, the remarks of Johnson J in Tuncbilek v R [2020] NSWCCA 30, from [63] to [83], confirmed that it could not be used to mitigate the sentence in any event.

171. Similarly, the remarks of McCallum J in R v Homann [2018] NSWSC 757 were referenced, which reasoned that where an offender’s psychosis plays a causal role in the commission of an offence, in circumstances where such a condition was caused by voluntary drug ingestion, it cannot act as a factor which reduces moral culpability. The Crown did, however, acknowledge the distinction that Homann involved an offender who was aware that the ingestion of ice would leave him prone to experiencing psychosis.

172. Overall, the Crown maintained the submission that drug-induced psychosis cannot operate to reduce the Offender’s moral culpability or mitigate the objective seriousness, however it was said to be relevant in the following ways:

1. it provides an explanation and context for the offending;

2. it enables the Court to conclude that the offending was not part of a planned or organised activity;

3. it is relevant to considerations of rehabilitation and recidivism; and

4. it may be taken into account in other ways outlined in De La Rosa, including a reduced need for specific deterrence and an increased onerousness of a custodial sentence.

173. I have taken those additional submissions, along with the additional oral submissions, into account, and will consider them further below.

Offender Additional Written Submissions – MFI 4

174. The Offender’s additional written submissions sought to overcome the difficulties raised by the Crown in MFI 3, and in particular, to elucidate the difference between objective seriousness and moral culpability, and by extension, the relevance of general and specific deterrence in the sentencing exercise.

175. Counsel for the Offender pressed the submission that this Offender’s moral culpability may still be found to be reduced, citing the observation by Campbell J that, in the circumstances of that case, the offender’s upbringing and his condition ADHD “provide a partial explanation for his use of prohibited drugs providing a degree of mitigation… and to some extent reducing his moral culpability” (R v Rhodes at [97]). I will return to this submission in due course.

Crown Additional Oral Submissions – 22 January 2021

176. The Crown largely relied upon its additional written submissions, save for expanding on a couple of points. In doing so, it withdrew the initial concession that the Offender’s moral culpability may be reduced to some extent, in light of the offending occurring in the course of a drug-induced psychotic episode (T1.47).

177. The Crown highlighted the lack of explicit evidence in the report of Dr Furst which might have suggested that the major depressive disorder contributed to offending in material way, and therefore submitted that an application of De La Rosa principles should be not be entertained. This submission was mainly addressed at any reduction in moral culpability and general deterrence. The submission that both of these factors remained relevant on this sentence was maintained by the Crown (T2.10-45).

178. It was conceded that it was open for me to making positive findings for the Offender in respect of the other De La Rosa principles, being the impact of a custodial sentence, reduction in specific deterrence and considerations of the Offender’s danger to the community (T4.36).

179. Again, the Crown accepted that the Offender’s rehabilitation prospects are good (T4.2).

Offender Additional Oral Submissions – 22 January 2021

180. Counsel for the Offender commenced by submitting that the Court should not be distinguishing between the contributing factors of the major depressive disorder and the drug-induced psychosis, insofar as the latter was a response to the former. It was submitted that such a submission was supported by the report of Dr Furst (T5.16). Dr Furst’s observation was that both of these conditions were evident at the time of the offending (T6.7). The difficulty with this submission is that if the psychiatric condition was causative then it mitigates the sentence. Self-intoxication does not.

181. On the topic of general deterrence, counsel for the Offender made a similar submission, supporting a reduction in the need for general deterrence to be considered as well as a moderation of the Offender’s moral culpability. In that regard, counsel suggested that the voluntary ingestion of drugs, weighed against the underlying depressive disorder, might permit the Court to find that “specific deterrence has a lesser role to play (and) general deterrence is tempered, but not by much” (T6.30).

The Offender’s Mental Condition and Drug Use

182. An offender’s mental condition can have the effect of reducing a person’s moral culpability, as well as impacting upon matters such as general and specific deterrence, retribution and denunciation. This is particularly so in circumstances where the mental condition contributes to the commission of the offence in a material way: Skelton v R [2015] NSWCCA 320 at [141].

183. Sentencing an offender who suffers from a mental disorder commonly calls for a “sensitive discretionary decision”: R v Engert (1995) 84 A Crim R 67 at [67]. This involves the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at [488]. The purposes overlap and often point in different directions. It is therefore erroneous in principal to approach sentencing, as Gleeson CJ put in R v Engert at [68]:

…as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

184. In Buckley v R [2021] NSWCCA 6, the CCA considered a scenario where the offender was suffering from pre-existing mental health issues (Schizophrenia, Anxiety and Depression), as well as a drug-induced psychosis, at the time of committing a string of offences. Wright J (with whom McCallum and Garling JJ agreed) observed at [98]:

In regard to the applicant’s mental health issues involving schizophrenia as well as anxiety and depression for which he is being treated in custody, I am of the view that these should not be found to lessen the applicant’s moral culpability in relation to the offending for which the applicant is being sentenced, in the absence of any evidence that they were causally related to that offending. To the extent that any of the offending was causally related to drug induced psychosis as a result of self-induced intoxication, I also accept that this is not a mitigating factor. Nonetheless I do find that the applicant’s mental health issues as diagnosed by Dr Chew should be taken into account so as to reduce to a certain extent the weight to be given to specific and general deterrence in this case. This is reflected in the indicative sentences and the aggregate sentence.

185. In my view, this passage replicates the prevailing line of authorities in relation to question of moral culpability, and I generally intend to make findings in accordance with it. That is, I do not find that this Offender’s moral culpability is in any way reduced on account of the drug-induced psychosis, caused by his decision to ingest a substantial amount of methylamphetamine.

186. As I have already stated, the relevance of this Offender’s mental condition, and the extent to which either it, or the self-administering of methylamphetamine, contributed to the subject offending was a primary issue for consideration in this sentencing exercise. It is important to note here that Dr Furst opined that the Offender was suffering from both a major depressive disorder and a substance-induced mental disorder (i.e drug-induced psychosis) at the time of offending, though he did not explicitly state the extent to which (if at all) the psychiatric condition materially contributed. The offending was due to his psychotic state. There is no evidence that his depressive condition contributed to the offending.

187. In my view, consistent with the opinion of Dr Furst, it was the drug-induced psychosis which was causative of the subject offences, rather than the major depressive disorder, although I acknowledge that it was a comorbid condition. The major depressive disorder (and the environmental causes of it), however, may be viewed as a contributory explanation for the Offender’s decision to ingest the drugs. Nonetheless, the intervening event of the drug consumption enlivens s21A(5AA), and prohibits me from making any findings of reduced moral culpability in favour of the Offender.

188. Both parties referred to the decision of Campbell J in R v Rhodes [2017] NSWSC 694. In that case, the Offender committed a double murder whilst under a drug-induced psychosis. In MFI 3 the Crown referred to paras [94] – [98] of the remarks as authority for the proposition that “drug-induced psychosis is not mitigating irrespective of whether the offender knew that a psychosis or change in behaviour was possible” (MFI 3 [8]).

189. The defence relies upon the decision of Campbell J by stating that his Honour “came to the conclusion that there was a ‘partial explanation’ for his use of drugs that operate ‘to some extent’ reducing his moral culpability’: at [97]… (but) that general deterrence remains a factor” (MFI 4 [14]).

190. With the greatest respect to counsel for the Offender, I consider that the extracted parts of the judgment relied upon by the Offender do not give full effect to what was said by Campbell J. The sentence in full reads (at [97]):

Moreover, the circumstances of his upbringing and his condition of ADHD provide a partial explanation for his use of prohibited drugs providing a degree of mitigation, as I have said, and to some extent reducing his moral culpability.

191. It should be observed that Campbell J’s description of that offender’s upbringing would satisfy the meaning of profound deprivation, so as to engage Bugmy v The Queen (2013) 249 CLR 571. He also suffered learning difficulties (at [63]).

192. In terms of his psychiatric state, Dr Furst considered that Mr Rhodes may have suffered a personality disorder (at [66]) and on testing it was revealed that his intellectual functioning was in the Extremely Low Range (at [68]), consistent with a Mild Intellectual Disability (at [69]).

193. At [72], Campbell J referred to the opinion of Dr Furst that “his underlying cognitive deficits probably made him much more vulnerable… mitigating to some extent against the seriousness of his actions”. That is, there was a link between his cognitive state and the offending

194. It is that nexus which does not exist in the present case. Whilst Dr Furst stated that the Offender was suffering from “a recurring major depressive disorder and a substance induced mental disorder (drug-induced psychosis) at the time of offending”, he does not link the depressive disorder to the psychotic state or to the offending. In those circumstances, the De La Rosa considerations do not apply and s21A(5AA) excludes self-induced intoxication as a factor in mitigation.

195. I make the following findings in relation to this topic:

1. I decline to find mental illness contributed in a De La Rosa sense. The Offender’s moral culpability is not reduced;

2. I find that the Offender’s positive action of consuming methylamphetamine operates as an intervening event between any negative effects of his depression and the subject offending. It is this intervening event that gives s21A(5AA) relevance;

3. in making the finding described in (b), I refer to R v Fang (No. 4) [2017] NSWSC 323 at [74], where it was stated:

Where the relevant mental condition arises, as in this case, from the person’s use of drugs and the person’s intoxication by use of a drug shortly before the commission of the offence, s21A(5AA) has application.

4. I find that the Offender’s depressive disorder provides an explanation for the decision to take drugs, however it cannot mitigate the offending in and of itself, by reason of s21A(5AA);

5. there is no evidence that the taking of drugs would cause a psychotic episode so as to aggravate the offending (see the decision R v Fang at [78]; R v Gagalowicz [2005] NSWCCA 452 at [36]). The evidence in this case does not permit such a finding, and I therefore decline to make a finding of aggravation in that respect. I would, however, observe that one might expect that most individuals would have at least some awareness of the risks involved in orally ingesting 3 grams of methylamphetamine. Plainly, his lack of awareness does not mitigate the offending;

6. in relation to the principles in DPP v De La Rosa [2010] NSWCCA 194 at [177], while I have already stated that I am not prepared to make any favourable findings in relation to moral culpability or general deterrence, I do make the following observations:

1. the significance of specific deterrence is reduced due to his prospects of rehabilitation and unlikelihood of re-offending; and

2. a custodial sentence will weigh more heavily upon him;

7. whilst mental illness may, in some cases, give rise to safety concerns in circumstances where an offender is released into the community (see DPP v De La Rosa at [177]), I am satisfied that this Offender presents no such risk, and it is not my opinion that increasing the period spent on parole would pose any substantive risk to society: R v Henry [2007] NSWCCA 90 at [28].

Aggravating and Mitigating Factors

Aggravating Factors

196. Given my observations above, and pursuant to s21A(2) of the CSP Act, I find that the following statutory factors of aggravation apply:

1. in respect of sequences 12, 28, and 32, the victim was a police officer (s21A(2)(a));

2. in respect of sequences 6, 13, 14, 15, 19, 21, 26, and 33 the offence was committed in the presence of a child (s21A(2)(ea));

3. in respect of sequence 4, the offence was committed in the home (s21A(2)(eb));

4. in respect of sequences 6, 13, 14, 15, 21 and 26, the Offender abused a position of trust or authority in relation to the victim;

5. in respect of sequences 6, 13, 14, 15, 21, 26, and 33 the victim was vulnerable in that the victim was very young (s21A(2)(l)); and

6. in respect of sequences 13, 14 and 15, the victim was vulnerable in that the victim was geographically isolated (s21A(2)(l)).

Mitigating Factors

197. Pursuant to s21A(3), I find that the following mitigating factors exist:

1. the offending was spontaneous, not organised, nor planned (s21A(3)(b));

2. the Offender does not have a record of any significant convictions (s21A(3)(e));

3. the Offender was a person of good character (s21A(3)(f));

4. the Offender is unlikely to re-offend (s21A(3)(g));

5. the Offender has good prospects of rehabilitation (21A(3)(h));

6. the Offender has demonstrated remorse (s21A(3)(i)); and

7. the Offender has pleaded guilty (s21A(3)(k)).

Objective Seriousness

198. Having regard to the facts and any of the above listed factors of aggravation and mitigation, which inform the question of objective gravity, I have determined the objective seriousness of each charge for sentence, for the reasons provided below.

199. For Count 1, being sequence 4 (intimidation), the Crown submitted that the objective seriousness may be viewed as sitting at the mid-range, or just below the mid-range. The defence submitted that the offending falls at the lower end of objective seriousness. I find the objective seriousness to be just below the mid-range, for the following reasons:

1. the apparent physical demeanour of the Offender, including clenched teeth, would have likely caused the victim to fear harm;

2. the offending occurred in the shared home of the couple; and

3. there was only verbal intimidation, and no physical intimidation.

200. For Count 2, being sequence 6 (assault occasioning actual bodily harm), the Crown submitted that the objective seriousness could be viewed as falling above the mid-range. The defence submitted that the offending falls at the lower end of objective seriousness. I find the objective seriousness to be just below the mid-range, for the following reasons:

1. the Offender physically handled another individual in throwing him into the victim;

2. a reasonable degree of force appears to have been used; and

3. the harm caused to the victim, although not trifling, does not appear to be overly significant, in that it caused bruises to the victim’s head.

201. For Count 3, being sequence 12, the Crown submitted that the objective seriousness may be viewed as sitting at the mid-range. The defence submitted that the conduct is typical of what would constitute this type of offending, and would therefore sit either at or just below the mid-range. I find the objective seriousness to be at the mid-range, for the following reasons:

1. the injuries caused to the victim were not insignificant;

2. the victim suffered a soft tissue injury as a result of the offending;

3. the Offender wrestled with the victim for a time; and

4. the Offender does not appear to have committed the offence with intent to harm the victim, but rather that it occurred as a consequence of the victim blocking his exit while he was attempting to escape custody.

202. For Counts 4, 5 and 6, being sequence 13, 14 and 15 (intimidation), the Crown submitted that the objective seriousness may be viewed as sitting above the mid-range. The defence submitted that the offending falls at the lower end of objective seriousness. I find the objective seriousness to be at the mid-range, for the following reasons:

1. there was a real likelihood that the victims would have been in fear at the time of the offending;

2. the victims were blindfolded and told to lay down out of sight, which would have likely caused them distress;

3. the victims would have likely been concerned, or at least confused, by the dialogue of the Offender;

4. the duration and time of day of the offending; and

5. the Offender did not openly threaten the victims with any violence, or suggest that any violence would occur towards them.

203. For Count 7, being sequence 28 (assault police officer), the Crown submitted that the objective seriousness may be viewed as sitting at the mid-range. The defence submitted that the offending falls at or just below the mid-range. I find the objective seriousness to be at the mid-range, for the following reasons:

1. the Offender deliberately ran at the victim;

2. a reasonable degree of force was used in the offending;

3. the Offender’s head impacted with the victim’s abdominal area; and

4. there does not appear to have been a substantive amount of harm caused by the subject offending.

204. For Count 8, being sequence 32 (cause grievous bodily harm to police officer), the Crown submitted that the objective seriousness may be viewed as sitting on the upper-end of the mid-range. The defence submitted that the offending would clearly be in the mid-range for offending of this type. I find the objective seriousness to be slightly above the mid-range, for the following reasons:

1. the Offender landed multiple blows on the victim;

2. a significant degree of force was used by the Offender;

3. the victim was knocked to the ground and man-handled by the Offender;

4. the injuries caused to the victim’s facial area were extensive, including to her nose, cheek and eyes;

5. the injuries caused by the subject offending required hospitalisation, and ultimately multiple surgeries, to remedy; and

6. the victim is left with facial scarring.

205. For Count 9, being sequence 33 (aggravated break and enter), the Crown submitted that the objective seriousness may be viewed as sitting at the mid-range. The defence submitted that the offending falls either just below or at the mid-range of objective seriousness. I find the objective seriousness to be at about the mid-range, for the following reasons:

1. the victim at home was 13 years of age, and would have had little understanding of what was happening;

2. the physical demeanour and shouting from the Offender would have caused significant distress to the victim;

3. despite the physical contact, no significant physical harm was caused to the victim;

4. the offending occurred in the victim’s home; and

5. the offending was committed in the presence of other children, namely the Offender’s children.

206. For sequence 19 on the s166 certificate (negligent driving), I find the objective seriousness to be above the mid-range, for the following reasons:

1. the offending occurred over an extended period of some 6-7 hours;

2. the Offender drove with one hand while, among other things, shaving his head with an electric razor;

3. there were children in the car for the duration of the offending; and

4. one of the children was in the boot of the car for a significant period of the offending;

5. the children were unrestained.

207. For sequence 21 on the s166 certificate, I find the objective seriousness to be below the mid-range, for the following reasons:

1. the Offender physically handled the victim;

2. the Offender threw the victim;

3. the victim did not suffer any significant injuries as a result of the subject offending; and

4. the Offender was not so much violent towards the victim as he was forceful.

208. For sequence 26 on the s166 certificate, I find the objective seriousness to be below the mid-range, for the following reasons:

1. a reasonable degree of force was used by the Offender;

2. the victim was tackled and pinned to the ground for a period of time;

3. the Offender appears to have believed he was helping the victim to hide; and

4. the victim did not suffer any significant harm from the subject offending.

Purposes for Sentencing

209. Pursuant to s3A of the CSP Act, I observe that the purposes for which a court may impose a sentence on an offender are as follows:

1. to ensure that the offender is adequately punished for the offence;

2. to prevent crime by deterring the offender and other persons from committing similar offences;

3. to protect the community from the offender;

4. to promote the rehabilitation of the offender;

5. to make the offender accountable for his or her actions;

6. to denounce the conduct of the offender; and

7. to recognise the harm done to the victim of the crime and the community.

210. Having considered all the circumstances of this case, and having had regard to the subjective and objective features, I am satisfied that the sentence to be imposed will effectively satisfy all 7 of these purposes, most particularly that of general deterrence.

Section 5 Threshold

211. Having considered all possible alternatives, I find that no other penalty other than a sentence of full time imprisonment is appropriate for this offending.

Special Circumstances

212. I find special circumstances, and find that this Offender would benefit from an increased period spent on parole within the community, and I intend to vary the ratio of the parole and non-parole period accordingly. This finding is based upon the Offender’s need for assistance with ongoing rehabilitation for his substance addiction problems, as well as his mental health issues. It is also his first time in a custodial setting.

Commencement Date

213. The Offender has been in custody for the subject offending since 18 March 2019, which therefore will be the commencement date for this sentence.

Standard Non Parole Period Offences

214. Sequences 12, 32 and 33 are standard non-parole period offences. I find that the imposition of the standard non-parole periods would result in the imposition of a sentence which is excessive, having regard to the objective seriousness of the offences, the finding of special circumstances, the reasons for the latter, and the Offender’s subjective case.

Aggregate Sentence

215. Before imposing an aggregate sentence, I am required to provide indicative sentences for each offence. I do so as follows:

IT: Indicative Term
INPP: Indicative Non-Parole Period

Sequence	Charge	Maximum Penalty	Indicative Sentence (After 25% Reduction for guilty plea)
4	Intimidate intend fear of physical or mental harm (Sarah*)	5 years’ imprisonment and/or 50 penalty units	IT: 12 months
6	Assault occasioning actual bodily harm (MH)	5 years’ imprisonment	IT: 12 months
12	Assault police officer in execution of duty cause ABH (Lisa Bennett)	7 years’ imprisonment 3 years SNPP	IT: 2 years INPP: 12 months
13	Intimidate intend fear of physical or mental harm (DH)	5 years’ imprisonment and/or 50 penalty units (with Form 1 attaching (sequences 3 and 11))	IT: 18 months
14	Intimidate intend fear of physical or mental harm (CH)	5 years’ imprisonment and/or 50 penalty units	IT: 18 months
15	Intimidate intend fear of physical or mental harm (MH)	5 years’ imprisonment and/or 50 penalty units	IT: 18 months
28	Assault officer in execution of duty (SC Melanie Greentree)	5 years’ imprisonment	IT: 12 months
32	Cause GBH to police officer on duty reckless as to ABH (Sergeant Rachael Robins)	12 years’ imprisonment 5 years SNPP (with Form 1 attaching (sequences 7, 27, 29 and 30))	IT: 4 years INPP: 2 years
33	Aggravated break, enter and commit serious indictable offence, namely intimidation (circ of aggravation – use of corporal violence) (JA)	20 years’ imprisonment 5 years SNPP (with Form 1 attaching (sequences 25 and 31))	IT: 4 years INPP: 2 years
21	Common Assault	2 years’ imprisonment and/or 50 penalty units	IT: 6 months
26	Common Assault	2 years’ imprisonment and/or 50 penalty units	IT: 6 months

Totality

216. I have had regard to the questions of accumulation and concurrency. Whilst the offending was a course of conduct, it was over an extended period and involved a number of victims. In my view, the principle of totality would be observed by allowing reasonable concurrency and some accumulation.

Conviction

217. [AH], you are convicted of the following offences:

1. H ending 648, sequence 4 – intimidate or intend fear of physical or mental harm (Sarah*), in breach of s13(1) of the Crimes (Domestic and Personal Violence) Act 2007 NSW;

2. H ending 648, sequence 6 – assault occasioning actual bodily harm (MH), in breach of s59(1) of the Crimes Act 1900 NSW;

3. H ending 648, sequence 12 – assault police officer in execution of duty causing actual bodily harm (Lisa Bennett), in breach of s60(2) of the Crimes Act 1900;

4. H ending 648, sequence 13 – another count of intimidate or intend fear of physical or mental harm (DH);

5. H ending 648, sequence 14 – another count of intimidate or intend fear of physical or mental harm (CH);

6. H ending 648, sequence 15 – another count of intimidate or intend fear of physical or mental harm (MH);

7. H ending 648, sequence 28 – assault officer in execution of duty (SC Melanie Greentree), in breach of s58 of the Crimes Act;

8. H ending 648, sequence 32 – cause grievous bodily harm to police officer on duty while reckless as to actual bodily harm (Sergeant Rachael Robins), in breach of s60(3) of the Crimes Act;

9. H ending 648, sequence 33 – aggravated break, enter and commit serious indictable offence, namely intimidation, aggravated by use of corporal violence (JA), in breach of s112(2) of the Crimes Act;

10. H ending 648, sequence 19 – negligent driving (no death or grievous bodily harm), in breach of s117(1) of the Road Transport Act 2013;

11. H ending 648, sequence 21 – common assault, in breach of s61 of the Crimes Act; and

12. H ending 648, sequence 26 – another count of common assault.

218. For those convictions you are sentenced to a term of imprisonment of an aggregate non-parole period of 4 years, commencing 18 March 2019 and expiring 17 March 2023, at which time you will be eligible to be considered for release on parole.

219. You are sentenced to an aggregate head sentence of 8 years, which will expire on 17 March 2027.   

220. For sequence 19, that is negligent driving, a conviction is recorded in accordance with s10A of the CSP Act, but no other penalty is imposed.

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I certify that the previous 220 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Amendments

12 February 2021 - Grammatical errors corrected

19 February 2021 - Insertion of additional pseudonyms