R v Bennett

[2022] NSWDC 321

District Court

New South Wales

Medium Neutral Citation:

R v Bennett [2022] NSWDC 321

Hearing dates:

20 July 2022

Date of orders:

4 August 2022

Decision date:

04 August 2022

Jurisdiction:

Criminal

Before:

Beckett DCJ

Decision:

Aggregate Sentence – Two years and three months imprisonment – non-parole period of 14 months

Catchwords:

SENTENCING - Property offences - Receiving - Possess housebreaking implement - Form 1 - Goods in custody  

DISADVANTAGE – Bugmy Bar Book – Bugmy Factors - Hearing Impairment – Institutionalisation – Drug use – Neglect – Culturally appropriate programs

Legislation Cited:

Crimes Act 1900 (NSW) – ss 188(1), 114, 115, 527C(1)(a)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

DPP (Cth) v Ramos [2018] VSCA 290

Lloyd v R [2022] NSWCCA 18

R v BS-X [2021] ACTSC 160

R v Russell (1995) 84 A Crim R 286

Texts Cited:

Bugmy Bar Book Committee, Hearing Impairment, (November 2019)

Community Affairs References Committee, Parliament of Australia, Hear Us: Inquiry into Hearing Health in Australia (Report, May 2010)

Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021)

Category:

Sentence

Parties:

Director of Public Prosecutions
Mr J Bennett (Offender)

Representation:

Solicitors:
Mr T Gabrial (Crown)
Mr J Clifford (Defence)

File Number(s):

2021/154832

Publication restriction:

Nil.

Judgment

1. The offender comes before the court for sentence in respect of the following matters:

1. An offence of receive property, serious indictable offence (less than $5000) in contravention of s 188(1) of the Crimes Act 1900 (NSW) (“Crimes Act”), carrying a maximum penalty of 10 years imprisonment (sequence 7).

2. An offence of commit section 114 offence having previous conviction, namely the possession of a housebreaking implement, in contravention of s 115 of the Crimes Act, carrying a maximum penalty of 10 years imprisonment (sequence 8).

2. Neither offence has a standard non-parole period attached to them.

3. Attached to the receive property offence is a single matter to be dealt with on a Form 1, comprising a goods in custody charge pursuant to s 527C(1)(a) of the Crimes Act, carrying a maximum penalty of six months.

4. The plea of guilty was entered whilst the matter was in the Penrith Local Court and thereby attracts a statutory discount of 25% for its utilitarian value.

5. The offender was arrested on 31 May 2021 and has remained in custody since that day. The offender’s parole was revoked on 23 June 2021 and he has served the balance of parole from 30 May 2021.

Facts

6. The facts are agreed and contained in the Crown bundle marked exhibit A. At 5:30pm on 30 May 2021 the victim’s handbag was stolen from her person by an unknown male at Seven Hills Plaza car park. The bag contained a number of items including a Samsung Galaxy Note 8 Mobile phone, a New South Wales drivers licence, Medicare card, debit card, credit card, and other identification cards. The facts do not contain an estimate as to the value of the items stolen.

7. Several hours after the incident the victim used a tracking device to monitor the movement of the phone, locating it to be in the area of Wharf Rd, Birchgrove. They apparently followed the traced location of the phone and found the offender at that location and contacted police, but subsequently lost sight of him. The police were later successful in locating the offender at 10:00pm in the Leichhardt area where he was subsequently searched. At the time he was found in possession of a black backpack which contained a crowbar 45cm in length wrapped in green electrical tape. They also found the victim’s handbag in which were located four pairs of designer sunglasses, a pair of white gloves, a glass pipe used to smoke methylamphetamine and several clear resealable plastic bags.

8. The offender was arrested and conveyed to Newtown police station where he was further searched, during which the victim’s keys were located. A tape lift taken from inside the main component of the victim’s handbag subsequently identified DNA that did not exclude the offender.

Objective Seriousness

9. Relevant to the assessment of the objective seriousness of the offending is the value of the items taken noting that they included not only matters of monetary value but also personal identification items that were apparently not recovered, a matter no doubt of significant inconvenience to the victim. In addition, there were other items taken from unidentified victims which are accepted to have been stolen, or suspected of being stolen, (being items contained on the Form 1). In respect of the second offence, the implement of housebreaking was a sizeable crowbar.

10. The parties submit that the objective seriousness falls below the mid-range of criminal offending. I note the ceiling of the monetary value alone is $5000 for the receiving offence. In the absence of any evidence about the actual value of the items, I will accept that categorisation. It is not far below the mid-range, however.

11. As to matters that were submitted to materially contribute to the commission of his offending, namely his drug addiction, I have considered these as relevant to his moral culpability, which I will turn to shortly.

Aggravating Features

12. I take into consideration the following aggravating features pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1986 (NSW) (“CSPA”):

1. I note that the offender has a significant record of previous convictions, being initially before the court as a juvenile in the Children’s Court and thereafter as an adult. He served his first sentence of imprisonment in 2007 concerning dishonesty matters. He has thereafter consistently served terms of imprisonment for what looks likes the majority of his adult life, mostly in relation dishonesty, driving and matters of violence. The offender’s record does not strictly aggravate the offending, but it disentitles him to leniency.

2. A significant factor of aggravation is that the offending was committed whilst the offender was on conditional liberty in the nature of a parole period relating to an offence of robbery in company whilst armed with a dangerous weapon. This is a factor that may be relevant to the length of the term imposed and/or the commencement date for the sentence. Care must be taken not to doubly count this factor. I will refer to this further below.

Subjective Material

13. A psychological report prepared in a previous matter was relied upon dating from late 2014, prepared by Ruth Allen, psychologist. Ms Allen set out the offender’s background. The offender identified as an Aboriginal man telling her he had no knowledge as to where he was born. He said that both his parents were Indigenous Australians and he thought that his father had stolen him from his mother when he was an infant. He said that his father passed away when he was four and he was brought up effectively by his stepmother, in the presence of regular alcohol consumption and violence within the family home witnessed between adults. He referred also to being subject to physical abuse perpetrated by his stepmother. He described his childhood as “no good” and was recorded as being emotional at this point of the interview. He said that his stepmother told him that her family was not his “real family” when he was seven years of age at which point, he “gave up”. He said the stepmother remarried a person he described as a “good man” because he intervened when his stepmother was violent towards him. His stepfather died when he was 10 years old. The offender said he got into fights at school with people who tried to bully him and hung around with the “wrong boys”. He began truanting in year seven at high school and has not undertaken any additional educational training since.

14. The offender said he left the family home when he was around 16 years of age and travelled between New South Wales and Victoria. He said he has been largely unemployed through his adult life having only short-term jobs, being disrupted by drug use and incarceration. He said his most successful work was when he worked on trawlers in Victoria.

15. The offender described two significant relationships in his life, the first being when he was aged 23 from which a daughter was born. He said the relationship broke down as a result of drug use and his propensity to be abusive and threatening. A stint in a rehabilitation setting in 2001 did not repair the relationship. A second relationship also resulted in two children being born. The first child subsequently died of SIDS whilst he was serving a period in custody in 2006. The second child, a daughter, was removed by FACS due to drug use by the parents. At the time the report was written in 2014, the offender reported he had not had contact with his daughter for some time.

16. The 2014 report further notes that the offender stated he was deaf in his left ear and had partial deafness in his right ear. He said he believed this was a congenital condition stating it was not identified until he was 10 when his stepmother took him to the doctor. He said as a child he would “cop a flogging for being ignorant, but I wasn’t, I was deaf”.

17. The offender reported growing up he had been sexually assaulted by one of his stepmother’s drinking friends. He said that he had been introduced to cannabis from the age of 7, which he linked to the time he was told by his stepmother that he was not related to the family and effectively felt that he did not belong. He said he commenced drinking alcohol at the age of 13 and heroin by 16 years. In 2014 he reported commencing methylamphetamine use.

18. The offender was assessed by Ms Allen as fitting into the border line range of intellectual disability however she indicated that the circumstances of the taking of the assessment were not optimal with extensive noise within the gaol. She surmised that it was likely that the offender was not hearing many of the questions in the assessment and could not say that the assessment result was a true representation of his intellectual abilities. She said that he obtained scores for depressive and antisocial personality patterns with elevated scores on measures for PTSD. Additionally, he scored in the “significant” range for alcohol and drug dependence.

19. As to the impact on his judgement (as concerned at least the earlier matters for which the report had been prepared) the psychologist opined:

Mr Bennett’s reported family history provided an unstable picture of core physical abuse and rejection that lacked the emotional empathy and guidance required to develop trust in others and effective coping skills. He further lacked a structured, consistent and connected historical family narrative that is important in providing a stable and resilient self - identity. This childhood instability appeared to have led to Mr Bennett’s development of severe personality pathology. This has resulted in his ongoing involvement in a dysfunctional relationship, the chronic use of drugs and alcohol, and impulsive reactive behaviours to manage negativity and unstable emotionality. Such behaviours have occurred within a context of a broader lack of trust and belief in social norms that would normally provide limits when making decisions.

20. The psychologist recommended the offender receive a high level of support in the community including intensive drug and alcohol treatment and additionally support to address his criminogenic vulnerabilities that took into account his level of functioning and hearing impairment issues.

21. The offender additionally relied upon an affidavit in his name that corroborated much of the background material contained in the 2014 psychological assessment, including as to the exposure to violence and alcoholism within his family unit from a young age. He referred to the childhood sexual abuse and general neglect, lack of access to adequate food and other indicia of poverty and a feeling of isolation within his own family. He made reference to his stepmother’s practice of letting him know that he did not belong. He said that his deafness had often been misinterpreted as disobedience or that he was stupid. He set out the long-term difficulties with drugs, the ramifications on his relationships and the death of one of his children whilst he was in custody. He said that one of his daughters was still at that time in FACS care and he was now in regular contact with her.

22. He said that during his last period of parole he was able to maintain supervised contact with this daughter and obtained 2 days work with his brother Richard. He said that he adhered to prescribed opioid replacement and went to regular counselling at Tharawal Aboriginal Corporation (“Tharawal”) where he had a good relationship with a case worker, Emma. He said that he managed to abstain from drug use for over 12 months but drifted back to his old relationship during the COVID lockdown, which inevitably involved him in the drug scene again and the resulting offending.

23. Once back in custody, he said that he had abstained from drug use and obtained employment daily in the clinic. He said on his release he aimed to recommence supervised visits with his daughter again who is now 14 years old with the hope that she could one day live with him. He wished to recommence counselling with Tharawal and apply for his driver’s licence. He said he had work with his brother on release.

24. In oral evidence before me the offender corroborated the accuracy of the affidavit. He said that he had difficulties in custody as a result of his hearing impairment and sometimes didn’t hear directions. He said he did not wear a hearing aid and had not had his hearing looked at since he was a child. He said he had learnt just to keep to himself but found that his work in custody in the clinic was “good” because the nurses knew that they had to speak directly to his face. He confirmed further that when he was last released to parole that he had resided with his brother Richard at Campbelltown and obtained counselling from Tharawal and formed a therapeutic relationship with the social worker and drug counsellor there. He said he had similarly formed a good relationship with the parole officer who he was honest with. He said that he was engaged in counselling at Tharawal for his various traumas and was finding it helpful. He said that it was the first time he had been referred to such a service. He said that his brother Richard had offered him work, and he was working a couple of days a week concreting and said that it felt good to be in work and his brother was proud of him. He also said that he was seeing his daughter in supervised sessions and that he had to be drug tested in order to see her which was helping him. He confirmed that his reconnection with his ex-partner during the COVID-19 lockdown reignited his drug use during an extended period when the meetings with Community Corrections and Tharawal were suspended and there was no work.

25. He said that he had a plan to try again to live with Richard, obtain work though him as he had last time and recommence counselling with Tharawal. His biggest motivator was restarting his contact with his daughter who he said was waiting for him to get out and now residing with his step son in Campbelltown. He said he would remain on methadone to help him manage any cravings on his release.

26. The Parole Breach Report indicated that the offender’s last parole period was breached as a result of his reoffending. He was otherwise reported to be compliant, including accepting pharmacological treatment and undertaking numerous counselling sessions with the Tharawal program during which his positivity was praised.

27. An updated Sentencing Assessment Report reported much of the plans the offender had outlined in his evidence including that the offender was “desperate to spend some time with his daughter before she grew up.” The offender was reported to have expressed his remorse for his offending and described as displaying some insight into his offending and feeling shame towards his family who had put their faith in him, particularly his brother who had afforded him a number of opportunities in life. He indicated he was willing to undertake interventions. He was assessed as of medium risk. It was suggested that on his release he return to Tharawal and to a men’s behavioural change program.

28. Finally, a letter was tendered from Kari Corporation (“Changing Lives. Keeping Culture”) from the offender’s daughter’s caseworker indicating that the bi-monthly contact between the offender and his daughter was authorised and supervised. His daughter had expressed through them that she enjoyed her time with her father and wished for it to continue. The letter indicates that the Kari Corporation is able to provide a supported environment for that contact to continue and for them to build and develop a healthy relationship.

29. Over the adjournment period until today two further letters were provided to the court. A letter from Ms Emma Shahin from Tharawal indicating that she had previously counselled the offender during his last release and that the counselling sessions had varied due to her own availability with COVID lockdowns. She said that the offender had developed a positive therapeutic relationship with her during which she said he had demonstrated insight. She said she had the capacity to continue to counsel him every 3 weeks and that the organisation would be able to provide him some other volunteer work which would help to integrate him into the community.

30. A letter was provided by Richard Hick, the offender’s brother, together with Julie Backhouse indicating that work was available for the offender 2 to 3 days per week and that the offender could again reside with them. He said that the offender would be supported to reconnect with local community and that they had good connections with Tharawal as Ms Backhouse had employment at the medical reception desk. He would be supported to ensure he kept up to date with his various attendances.

Mitigating Factors

31. I take into account the following factors pursuant to Section 21A(3) C(SP)A. The offender has pleaded guilty and I am satisfied that he has provided evidence that he is remorseful for his conduct and has insight into the causes of his offending and the impact of them on the community.

Capacity for Rehabilitation

32. The assessment of the offender’s capacity for rehabilitation ought be considered holistically, both as to his current circumstances, but also in respect of his life trajectory. It must be recognised that the offender’s last period of release into the community was more successful than apparently any earlier period of release over the last 20 or so years. The offender’s custodial history indicates consistent impositions of gaol terms over his adult life. He has rarely been out of custody more than a couple of months before he re-offends. The eighteen-month period of his parole was over a difficult period with society in COVID-19 lockdowns and disruption to services critical to his re-integration into society, resulting in an inability to access community care and treatment with his service providers.

33. On his release the offender will have important prosocial supports in his brother and employment and an established relationship with Tharawal, an indigenous led program providing a varied range of health, well-being, and accommodation services in a culturally safe environment with expertise in dealing with intergenerational trauma. That program can offer culturally appropriate programs not previously made available to him, other than during his last parole period. The offender has recommenced an opiate replacement program to help him manage his cravings on his release and is motivated by the development of his relationship with his daughter with culturally appropriate supports including a requirement that he establish his abstinence. As opposed to his previous periods in custody, I also note the offender appears to have maintained abstinence within the gaol and held employment over the latest period.

The Significance of Culture to Wellbeing

34. What is of particular significance is that the offender has apparently only recently had the dual support of two indigenous controlled organisations, apparently working closely in cooperation with Community Corrections. He has clear motivation to not reoffend or return to drugs for the purposes of maintaining a positive relationship with his daughter, with the assistance of Kari Corporation. Recently, The Significance of Culture to Wellbeing, Healing and Rehabilitation report, ^[1] commissioned by the Bugmy Bar Book, has established the important role to be played by culturally appropriate services in the exercise of rehabilitating Indigenous offenders. The Report presents expert opinions, collates the findings of major reports, and draws from leading Indigenous scholarship to demonstrate the significance of culture for Aboriginal and Torres Strait Islander people in promoting healing and rehabilitation. With respect to sentencing proceedings in criminal matters, the Report outlines the significant benefits of culturally appropriate treatment and care that provides for a connection to culture, family and community, in achieving those outcomes. The report relevantly states as follows [emphasis added]:

[E]xisting data regarding the ongoing over-incarceration of Aboriginal and Torres Strait children and adults clearly demonstrates that … current approaches are not adequate … There are long-standing community concerns regarding … [the] disproportionate impact on Aboriginal and Torres Strait Islander peoples and communities, including deaths in custody. The current evidence demonstrates that the ‘status quo’ approach is not effective or sustainable. … this report highlights the significance of culture to Aboriginal and Torres Strait Islander peoples, and the importance of connecting to culture and culturally appropriate treatments to facilitate healing, including in a criminal justice setting. It highlights the importance of the social and emotional wellbeing framework for Aboriginal and Torres Strait Islander people, the need to understand this holistic world view and the need to take into account both individual and social factors in how healing is promoted. Finally, the report identifies culture as a strength that builds capacity in Aboriginal and Torres Strait Islander people, which is seen as a protective factor.

1. Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021)

35. The Report recognises that approaches to rehabilitation which address systemic issues and disadvantage have far better outcomes for Aboriginal and Torres Strait Islander people and communities and keep communities together. ^[2] This includes discussion of intersections affecting people with disability, and families involved with child protection systems. In practical terms, rehabilitation for Aboriginal and Torres Strait Islander people is enhanced by services that support individuals to build core capabilities within a culturally safe environment, including learning to recognise destructive behaviours, building coping skills, and forming supportive and pro-social relationships. These are all recognised as protective factors against re-offending. ^[3] In R v BS-X,^[4] Justice Loukas-Karlsson made extensive reference to this report, noting its relevance to the evidence in that case in the application of principles of Bugmy v The Queen ^[5]

    2. At [213].

    3. Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021) at [213].

    4. [2021] ACTSC 160, 105.

    5. 249 CLR 571.

36. Returning to matters of mitigation, I find the offender’s prospects of rehabilitation are not unfavourable in light of the significant and culturally appropriate supports available on his release.

37. Given his criminal record, I am unable at this point to make a positive finding that he is unlikely to reoffend.

38. As stated, the offender is to receive the statutory discount of 25% for the utilitarian value of his plea in the Local Court.

Moral Culpability

Compounding Disadvantage Including Hearing Impairment

39. This offender, with his exposure to multiple forms of disadvantage in his young life, compounded in his adult years by incarceration, drug addiction and subsequent removal and loss of his children, must also be seen in the context of disadvantage arising from his hearing impairment. The Bugmy Bar Book has collated research ^[6] that indicates that long-term hearing impairments of Indigenous children was 2 to 9 times the rate of non-Indigenous children. ^[7] Hearing impairment is often caused by middle-ear infections, starting early in life with increased severity and persistence than non-Indigenous children,^[8] often linked to poorer social determinants of health, including poverty, overcrowding and inadequate access to health services and nutrition. ^[9] Hearing impairment is recognised to impact on an individual's language and behavioural development, leading to complex outcomes such as low educational attainment, social dislocation and high levels of unemployment. Limited engagement in education and employment, is also recognised as contributing to increased engagement with the criminal justice system. ^[10]

    6. Bugmy Bar Book Committee, Hearing Impairment, (November 2019)

    7. At [6].

    8. At [7].

    9. At [8]-[9].

    10. At [17].

40. In 2017, the House of Representatives Standing Committee on Health, Aged Care and Sport found that:

Hearing impairment in early childhood can set off a chain of negative impacts that entrench disadvantage in Aboriginal and Torres Strait Islander communities. The unfortunate link between hearing loss and interactions with the criminal justice system can be seen in the Darwin and Alice Springs correctional facilities where 90% of ATSI inmates have hearing loss. ^[11]

11. At [77].

41. The Committee acknowledged in the Hear Us: Inquiry into Hearing Health in Australia report, ^[12] that prison life is particularly difficult for hearing impaired prisoners, noting that “in a world managed by bells and verbal instructions, daily life for the hearing impaired is an extra challenge, especially if their impairment is undiagnosed.”^[13]

    12. Community Affairs References Committee, Parliament of Australia, Hear Us: Inquiry into Hearing Health in Australia (Report, May 2010)

    13. At [29].

42. On balance, I am not satisfied that the evidence establishes the offender has cognitive or intellectual impairment in light of the suboptimal context in which the psychological assessment was carried out with the difficulties of the offender being able to hear many of the questions. Acknowledging that I have no training in psychology, from my own observations, there was nothing about the evidence given before me by the offender that made me think that he was (obviously) intellectually delayed in any way. I accept however that his hearing impairment may well have led to many learning difficulties and may have manifested in the appearance of intellectual deficits as the psychologist conceded was a possibility.

43. In summary, I consider the offender’s moral culpability is reduced because the multiple and compounding disadvantages this individual faced in his childhood before he had any chance to exercise agency over his life. As was recognised in Bugmy v The Queen (2013) 249 CLR 571 at [42]-[43], these have not diminished over time with repeated offending and should be given “full weight” on sentence. These multiple disadvantages predisposed him to drug use introduced to him in his childhood, and ensuing dependence, which have led him into entrenched criminal offending well before adulthood. His drug use has damaged his relationships and brought him continuously into contact with the criminal justice system, further damaging his personal and familial relationships, institutionalising him and disrupting his chances of maintaining stability within the community (including as to housing and employment). I also accept his time in custody has been more difficult as a result of his hearing impairment as was recognised by Kirby J in R v Russell (1995) 84 A Crim R 286 ^[14] and DPP (Cth) v Ramos [2018] VSCA 290. ^[15] These features are relevant both to the setting of the head sentence, but also to the necessity for extensive support is necessary on the offender’s release from prison.

    14. At pp 392-393.

    15. At [16].

44. As a result of this finding, the role to be played by general deterrence on sentence is diminished to a degree, as is the weight to be given to other purposes of sentencing, particularly as to denunciation. With his repeat offending, specific deterrence continues to have a role to play, but conversely, rehabilitation must be given substantial weight, particularly at this critical time when he is motivated to change and has all of the appropriate supports in place. As observed above, his chances of rehabilitation at present are perhaps better than they have ever been, particularly if Tharawal, can assist the offender to seek treatment for his hearing impairment, or at least provide him with access to hearing aids.

Commencement Date

45. As stated, the offender entered Corrections custody on 31 May 2021 although it is apparent that he was taken into police custody the day before, being 30 May 2021. The offender’s parole for his earlier matter was revoked from this day, the basis for which was the commission of these charges. As I have aggravated the offending as a result of his being on parole, I intend to backdate the sentence from the date of his arrest on 30 May 2021.

46. I take into account the principle of totality given the similarity and degree of connection between the offending both in time and type, noting the different victims. I note that all matters could have been dealt with in the Local Court, with a lower jurisdictional limit.

47. I find that the s 5 threshold is crossed by virtue of the objective criminality of the offending and the significant factor that he was on parole at the time.

48. I take into account the maximum penalties.

49. I find special circumstances in the sense that the offender will need extensive supervision to ensure his hearing impairment is treated; he receives drug and alcohol treatment including maintenance of his opiate substitute treatment and receives support in respect of management of the psychological conditions deriving from his PTSD arising from childhood. I also accept that COVID -19 has made custody more difficult for all prisoners relevant to the finding of special circumstances.

50. I indicate the following sentences in respect of both sentences:

1. In respect of Sequence 7, taking into account a 25% discount for the offender’s plea of guilty and the matters on the Form 1: 24 months

2. In respect of Sequence 8, taking into account a 25% discount for the offender’s plea of guilty: 9 months.

51. I impose an aggregate sentence of 2 years and 3 months to date from 30 May 2021 and expire on 29 August 2023, with a non-parole period of 14 months to expire on 29 July 2022. He ought therefore be released forthwith.

52. I recommend that Community Corrections direct the offender seek treatment for his hearing impairment with the assistance of Tharawal; counselling concerning his historic trauma together with drug and alcohol treatment noting he is currently receiving opiate replacement treatment. I ask that a copy of this judgment be transcribed and provided to Community Corrections.

53. I refer the psychological report of Ruth Allen and the letters from Kari Ltd and Tharawal to Community Corrections.

Endnotes

Decision last updated: 05 September 2022