R v Blair; R v Fritz; R v Gordon

[2022] NSWDC 660

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Blair; R v Fritz; R v Gordon [2022] NSWDC 660

Hearing dates:

25 October 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [49-51.(4), 77-79.(4), 112-114]

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

R v Burrow [2017] NSWCCA 45

R v Alferlink [2021] NSWDC 473

Lloyd v R [2022] NSWCCA 18

R v Millwood [2012] NSWCCA 18

Hoskins v R [2021] NSWCCA 169

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ

Category:

Sentence

Parties:

Rex (Crown)
Blair (Co-Offender)
Fritz (Co-Offender)
Gordon (Co-Offender)

Representation:

Solicitor Campagna for Gordon

Council: Davies for Blair, Kumarasinhe for Fitz Counsel: For Blair

File Number(s):

2021/00307512, 2021/00298003, 2021/00280721

JUDGMENT

Introduction

1. Each of the co-offenders are charged with two offences, namely destroying/damaging property in company in contravention of section 195(1A)(a) of the Crimes Act, which has a maximum penalty of 6 years imprisonment and no standard non-parole period, and using an offensive weapon in company with the intention to commit an indictable offence of intimidation in contravention of section 33B(2) of the Crimes Act which has a maximum penalty of 15 years with no standard non-parole period. In relation to the co-offenders Liam Gordon and Jordan Blair only, there is a further offence of aggravated break and enter and commit a serious indictable offence in company, namely assault occasioning actual bodily harm, in breach of section 112(2) of the Crimes Act which has a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years.

2. I take the maximum penalties and the standard non-parole period in relation to Mr Gordon and Mr Blair into account as legislative guideposts indicating the view of the legislature as to the seriousness of the offending to assist in arriving at the appropriate sentences. In that regard I note that the standard non-parole period is a legislative guide for all cases and is not only relevant where the offending falls in the middle range of objective seriousness.

3. In respect of the case of Mr Blair only there is a matter to be dealt with by way of the Form 1 procedure being the offence of larceny of a value of less than $2000 which is to be taken into account when sentencing for the offence of aggravated breaking and entering and committing a serious indictable offence in company. I note the maximum sentence for a larceny matter is 5 years. In relation to the Form 1 procedure, which as noted is relevant only to Mr Blair, it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this, greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

4. The offending occurred on 2 October 2021. Mr Gordon was arrested on that day and has been in custody from that date to the present time in respect of this offending only. Mr Fritz was arrested on 20 October 2021 and has been in custody for this and other matters in the period between then and now. Mr Blair was in custody from 20 December 2021 upon his arrest until 7 June 2022. At the time of the offending Mr Gordon was on bail for other offending. The other two offenders were not on conditional liberty.

5. These reasons will first set out the facts common to all three and then identify further facts relevant to Mr Blair and Mr Gordon and will then deal with the respective subjective cases of the offenders.

The Facts

6. The agreed facts are set out at tab 2 of exhibit A, the Crown tender bundle. Also forming part of exhibit A without objection was a summary of what could be seen on a CCTV recording which was played to the court and was also in evidence. The offenders are criminally liable in respect of their respective offending on the bias of joint criminal enterprise and the CCTV assists in determining what the particular conduct of each of the offenders in respect of the offences.

7. The offending occurs at 2 Toona Way South Grafton. At the time of the offending eight people were at that address. This included two children aged 6 and 7. It also included a man named Raymond Fritz who is the brother of the offender Mr Fritz. Of the remaining five people in the house 4 were female.

8. In addition to the three co-offenders being dealt with in these proceedings, charges have been brought against another six people. The only one of them sentenced to date so far as the papers show is an MR who was dealt with in the Children’s Court. Whilst parity will be an issue as between the three offenders presently being dealt with, any use made of the sentence of MR will need to be guarded given the different sentencing principles applied to his case.

9. The nine people charged with offences from this evening were from two different drinking groups at two different houses in South Grafton. Mr Gordon had left one house for a walk and when he returned, he told the group he was with that Bruce Walker was up the road and “the boys were starting on him” meaning Mr Walker and he asked the others to come up and help him, meaning to help “start on” Mr Walker. The group so formed walked towards Raymond Fritz and his partner Terrianne Walker, who were at an intersection having a cigarette. As the group approached them Mr Gordon yelled out “where is your uncle Bulla? Is that you Raymond? Get your cunt here let’s have a go”. Raymond replied he had nothing to do with whatever problem Gordon had with Bulla and told him to “fuck off”. Bulla is a different person to Mr Walker.

10. Terrianne returned to 2 Toona Way and ran up the stairs yelling for Alan who came to the front door. Raymond ran up behind her and all three retreated into the house. Raymond locked the door and told Loretta and Cherylee to get the children. As he was doing this the lounge room windows started to get smashed, and the children were grabbed by three females and taken into a bedroom.

11. The actions of the group of offenders is set out in the narrative form in the agreed facts. Those words fail to describe the absolute lawlessness of what occurred which is captured by the CCTV footage. The points that may be taken from the narrative are as follows:

1. The group approached the front of the house and threw various items at the lounge room windows. They yelled abuse such as “I’m going to fucking kill you ya dog”; “Bulla cunt” and “Bulla Bulla ya fucking cunt”; all this, and Bulla was not there.

2. The group ran away and then returned along with an unknown person. They were armed with various instruments including a hammer, a knife, wooden palings, a metal rod, bricks and other items. They yelled abuse at the occupants of the house. Some of the group struck three cars parked at the house and others began smashing the mailbox, front patio, and windows of the house. In relation to the motor vehicles the CCTV captures the damage done to 1 of them. Members of the group can be seen jumping upon the car kicking the car and attacking the car with implements one of which appeared to be a hammer which was repeatedly smashed onto the front windscreen with the result of it eventually being destroyed.

3. Inside the house the children were removed from bedroom one when its windows began to be smashed, then into bedroom two and when its windows started get smashed, into bedroom three. At this point a mattress was turned over and the children were hidden beneath it, screaming and crying.

4. It is the events before the entry was gained to the premises that constitutes the use weapon in company with intent to intimidate and damage property in company charges; once the narrative reaches the point of entry to the house, the facts set out a heading indicating those events relate to the break and enter offence.

5. Prior to the door being broken down Mr Fritz (the offender) and Mr Fleming and Mr Roberts, two offenders awaiting sentence, were on the patio yelling for Bruce, a brother of one of the women. Like Bulla, Bruce was not at the house. Raymond was yelling at them and told his brother the offender Mr Fritz to fuck off and he wanted nothing to do with him. In response Mr Fritz yelled back and grabbed a piece of wood and started hitting one of the cars in the driveway.

6. Mr …. was the one who succeeded in kicking the door in after several earlier attempts seen on the CCTV had failed. Mr Gordon came up next to him and yelled let’s go. Of the current offenders Blair (subsequently) and Gordon entered the house but Fritz and one other left the scene. Raymond did his best to block the entry of the offenders and to prevent them getting to the room with the children. Gordon kicked Raymond and grabbed him by the shirt and they pushed and shoved until Raymond broke Gordon’s grip. The group threw things at Raymond such as rocks, furniture and a television. One threw a knife at Raymond with part of the blade hitting his wrist. Raymond threw things back at the offenders and yelled to Cherylee and Terrianne to ring the police and not long after the group left.

7. Raymond suffered a small cut and swelling on his right wrist and hand, a sore jaw and cuts on his feet from the smashed glass on the floor. He was treated for the pain and cut to his wrist at hospital with the wrist cut being glued together. These are the injuries making good the assault occasioning aspect of the offence.

12. During the incident Raymond’s wallet was stolen as was another occupants PlayStation 4 and games, Terrianne’s wallet containing $200 and her mobile phone worth $600. That is the offence of larceny on the Form 1 in relation to Mr Blair. In the circumstances in which that larceny occurred I would place it in the mid range of objective seriousness. It could be described as opportunistic, and I take that into account.

13. The property destroyed and damaged was significant and is described by the agreed facts as:

1. Most windows and panels were smashed or damaged of the three cars which were not insured.;

2. The television and numerous pieces of furniture and personal items were smashed or damaged. There was no contents insurance.

3. The house was deemed uninhabitable. Financial losses suffered by New South Wales Land and Housing Corporation totalled $22,962.37 which was a cost of repairs and lost rent.

14. A Police investigation commenced. Gordon was arrested the day of the offending. After a number of the offenders had been located by police on 20 October 2021 Fritz contacted the police and was arrested and charged that day. Blair ultimately attended the police station on 20 December 2021 and was arrested that day and charged.

15. What is notable about these facts is the following:

1. Its’ totally unprovoked nature; even if Bulla was present there is no explanation of why he might have incurred the wrath of this group and of course he was not present.;

2. The total lack of consideration not only of the property rights of the victims but the personal safety and well-being of them. The person the offenders apparently refer to to justify this attack is the man Bulla; yet the victims are two small children aged 6 and 7, and six adults seeking to have a social evening.;

3. It’s frenzied nature. To compare what was seen on the CCTV to a swarm of locusts in a wheat field would be no exaggeration. The determination displayed to knock in the front door deserves comment. Numerous attempts were made. A failed attempt would see the particular offender leaving his post at the front door only for someone else to take up the task and with the ultimate person who was successful having Mr Gordon waiting nearby ready to invade the premises.

4. The total pointlessness of what was occurring.

5. The thoroughness of the attack. The house as a result of this attack was rendered uninhabitable. The one car that could be seen to be attacked in the CCTV must almost certainly have been accounted for as a write-off. The point is the damage was thorough and almost systematic albeit frenzied. It just kept happening. It is perhaps a matter that lessens the assessment of objective seriousness that it can be seen to have occurred in only 9 minutes. The offending stops just before the police arrive suggesting an awareness of the impending arrival of the police, as suggested by the facts. Furthermore, whilst more damage could have been done the job was comprehensively accomplished by the time of departure. In my view the length of time of the offending does not mitigate the offending but prevents an even more serious assessment of objective seriousness.

16. In my view that assessment of the situation must place each of the offences, viewed as the offence contributed to by each offender in a joint criminal enterprise, well into the upper mid range. That the dollar amount of damage could be far higher, and the injury for the assault occasion element of the break and enter charge could be more serious, does not alter this conclusion; those are matters that have been considered, and they are not determinative.

17. It is however necessary to consider so far as is possible the individual acts of the respective offenders. Before considering that it should be noted that the summary provided by the Crown shows that the earliest time in the summary is at 12:31 AM and the latest time of the offending by the group at 12:40 AM so that the offending occurred over a period of some 9 minutes.

Blair involvement

18. The summary shows that so far as Mr Blair is concerned he arrives at 12:34 AM, walks towards the front patio, picks up an object and throws it at the house; he walked towards the front of the house, he walked to the road and picked up a wood paling and throws it at the house; he walked towards the patio and throws an unknown object at the house; he kicks the letterbox twice; he yells at Raymond from the patio through the window; when KS kicked the door in he walked up Toona Way but then returns and enters the house; on leaving he picks up an item in front of the car and throws it at the windows of the second bedroom; he yells out pointing towards the house and says “Bruce in the back room”; he enters the house a second time. In my view this shows Mr Blair to be significantly actively involved in what was going on. It enables his particular activity to be identified by reference to the throwing of various objects and yelling; he does not himself kick the door in and it does not attribute to him directly any damage to the cars which is so evident on the CCTV. Looking at his own contribution to this offence, but also taking into account, in line with Burrows [2017] NSWCCA 45 as submitted by the Crown, that the existence of and participation in the joint enterprise limits the extent of differentiation between participants, I would assess his objective seriousness for the damage property as being in the mid range, and for the use offensive weapon charge as less than that, on the cusp of low and mid, and the aggravated break and enter as being just below mid, and in this regard I take into account the fact he initially went away when the door was broken down, and later entered for a short time, albeit armed.

Fritz involvement

19. In respect of Mr Fritz his involvement is limited to some two minutes and 30 seconds commencing at about 12:34 AM. He lingers around the front of the house and on the road and then goes on to the patio and yelled abuse at his brother Raymond, variously asking him if he wants to fight and telling him to come out now and to tell Bruce to get out now. He then grabs a wooden paling and smashes it against the car five times. He walks up the road as the others gain entry to the house.

20. Considering his actual involvement in the damage property and use offensive weapon offences it can be seen that his involvement is markedly less than Mr Blair’s when viewed by excluding Mr Blair’s involvement in the break and enter; this is in terms of both what he did and the time over which he did it and I would assess it below the mid range of objective seriousness. That he was so less involved that the others in the overall offending justifies a finding markedly different than the overall assessment of the offending.

Gordon involvement

21. The summary relating to Mr Gordon shows he was involved for some 7 minutes commencing at 12.31am. As already noted he was instrumental in this occurring, being the person instigating the search for Bulla. He strikes the boot of a car with a hammer four times and yells “just do something motherfucker”. He walked to a second car and struck it twice with a hammer yelling “you little motherfucker”. He continued to yell abuse while striking the car with the hammer seven times. He went to the front door and kneels towards the window of the front bedroom with a hammer in his hand. He goes down the stairs, picks up a brick and throws it at the window of the second room. He strikes the silver car nine times with the hammer. The hammer is taken by someone else and Gordon picks up the wooden paling and runs up the front stairs. Once the door has been kicked open he yells “lets go cunt” and walks down the stairs only to then go into the house through the now broken door carrying the wooden paling. On exiting the house, he throws a small ladder at the window of the first room. He walked towards the front of the house and yells “fucking we run this town”.

22. The assessment of objective seriousness of Mr Gordon’s offending is in the upper middle range; he is involved in the destruction of both the cars and the house to a significant degree; he was instrumental in the commencement of the activity. He was enthusiastic about getting into the house. His involvement was for a significant part of the time of the offending.

23. As to aggravating matters, this offending occurs in the home, involves violence and is in the presence of children. Each of those matters has been taken into account in determining objective seriousness. Mr Gordon was on bail at the time of the offending, and that has been considered in determining his ultimate sentence.

Sentencing considerations

24. The purposes of sentencing are as follows:

1. To ensure the offender is adequately punished.

2. To prevent crime by deterring the offender and others 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 actions.

6. To denounce the conduct of the offender.

7. To recognise the harm done to the victim of the crime in the community.

25. The purposes that most require addressing in each of the present cases, to varying degrees, are deterrence, to protect the community, denunciation and to promote rehabilitation.

Subjective cases

26. In respect of each offender they are entitled to a 25% discount for the time at which they entered their guilty pleas.

27. Although Mr Blair gave some evidence as to alcohol and violence concerning his parents, and that they separated when he was between 6-8 years old, no submission was made in reliance on Bugmy. Both of the offenders Gordon and Fritz did rely upon the principles set out in Bugmy. I accept that each of the offenders Fritz and Gordon has had a background of social disadvantage.

Jordan Blair

28. Each of the offenders gave evidence. Mr Blair gave evidence of now living at Port Macquarie and doing hospitality courses. His evidence was of moving to Port Macquarie to get away from Grafton. He had much to drink on the night in question, estimating 12 cans of bourbon, I infer mixed with some other drink. He described himself as 8/10 drunk. When asked why he got involved he said he did not know and said it was a stupid act. He said he felt real bad and acknowledged it would terrorise people. He said he had been abstinent from alcohol and dope. He referred to his mother and father being abusers of alcohol and much argument and violence. When they separated he went to live with his nan, who was present in court.

28. There was a sentencing assessment report dated 13 October 2022. It notes his brother with whom he lives appears to be pro social and offers support including a residence. Mr Blair wishes to remain at Port Macquarie to remain away from anti social associates in Grafton. He is unemployed. He has minimal criminal history. He expressed remorse and would like to apologise to the victim if he was able to. He said he got swept up in the actions of those around him.

29. He said his binge drinking on weekends was regular and use of cannabis was daily at the time of the offending but he had been abstinent since being released on bail, which was 7 June 2022.

30. The report says he demonstrates insight into the impact of his behaviour on the victims, himself and his family. He stated the victims would be frightened and would affect their ability to trust and would cause fear of it happening again.

31. He was willing to undertake intervention and do community service work. Prior supervision was satisfactory.

32. He was assessed as a medium risk of reoffending.

33. Mr Blair was born on 6in July 1997 so he is now 25 years old and was 24 at the time of the offending. I consider him to be youthful and based on the material clearly an unsophisticated young man easily persuaded by others.

34. In 2017 so at the age of 20 he received a suspended sentence for aggravated breaking and entering. Initially he received a fine and a 12 month suspended sentence. That however was called up presumably, (relying on his criminal history) due to offences of being in custody of a knife and possession of a drug for which he received a CCO and a fine. On the call-up of the more serious offence he received an intensive correction order. That concluded in 19 January 2021 so that this current offending occurred some nine months after the supervising order ended.

35. I consider Mr Blair's subjective case to be a good one. He has had the good sense to get out of Grafton and away from antisocial influences and to attach himself to his prosocial brother.

36. He has also taken meaningful steps towards rehabilitation. Whilst he does not presently have a job, he is undertaking courses. I accept his expressions of remorse expressed both in evidence and also to the sentencing assessment report writer. He has been abstinent for some six months. The previous supervision was satisfactory. These are all indicators that suggest he has prospects of rehabilitation and it is already underway. Should he adhere to this course the likelihood of reoffending in my view will be less than medium.

37. Mr Blair accepted that the offending crosses the section 5 threshold. It was further submitted for the offender that should he receive a sentence of less than three years then the sentence should be served in the community by way of an intensive corrections order.

38. For the Crown reference was quite rightly made to the seriousness of alcohol fuelled violence. The Crown submitted that whilst youth and immaturity were relevant they do not render the other purposes of sentencing nugatory. The Crown accepted there was a minimal criminal history but did note the earlier aggravated break and enter charge. As to the application for an intensive corrections order it was submitted that the need for denunciation and general deterrence meant that upon a consideration of section 66 there should be no intensive correction order. It was suggested that the offending was so serious that an ICO was out of the range.

39. In order to determine whether it is appropriate to proceed by way of an ICO there is a three-step process. The first is to determine whether the section 5 threshold is crossed. It is agreed that it is and I concur with that view.

40. The second step is to determine the length of the sentence. Mr Blair is to be sentenced for three offences as outlined above. The Form 1 matter of larceny is to be taken into account in determining the sentence for the aggravated break and enter. That matter also has the standard non-parole period of five years. I take into account the purposes of sentencing referred to above.

41. I intend to proceed by way of an aggregate sentence. The indicative sentences are, firstly in respect of the damage property charge, 2 ½ years before the discount so 22 ½ months after the discount. For the use offensive weapon charge 4 years prior to the discount, so 3 years after the discount. In respect of the aggravated break and enter charge that too would attract 4 years before the discount and 3 years after the discount.

42. There is plainly a role to be played here by the principle of totality which is applicable to all the cases. In respect of Mr Blair there is really the one course of conduct in respect of the destroy / damage property and use offensive weapon charges where the same conduct really founds both offenses and they should be wholly concurrent. There does need to be some additional sentence for the aggravated break and enter; going into somebody’s home with a weapon with the intent to do harm to others. It also has the larceny matter to be taken into account in the Form 1 procedure.

43. The total sentence I arrive at is 3 ½ years. I note that Mr Blair has spent five months and 19 days in custody. This means that he is 11 days short of being able to have an ICO considered. I consider it appropriate to take into account that whilst in the community has been on bail which represents a form of limitation on his liberty and something that I can take into account by way of quasi-custody; see Quinlan. On that basis I would round up his time in custody to be six months.

44. The result is he is to be sentenced to an additional term of three years in prison. It is a matter of discretion as to whether to backdate the sentence or to take into account the time served in determining the sentence to commence from the day of the order. For reasons set out in Alferlink, it is an acceptable approach to determine in the present case that the term should be 3 years commencing from the date of the order. It follows that an intensive correction order is not prohibited by section 68.

45. The next consideration is section 66. That section makes plain that the paramount consideration is community safety which clearly is a significant matter in offending of this type. By section 66(2) the assessment must be made as to whether the making of the intensive correction order or the serving of the sentence in full-time custody will best address the likelihood of reoffending. In my view this assessment favours the offender who has already shown that he has the good sense to remove himself from his antisocial peers and place him in the environment of his pro-social brother. Whilst on bail there is no suggestion of breaking any bail condition. Whilst there are rehabilitative programs available in custody the likelihood must be that to remain amongst the pro social environment that he is presently in to further pursue skills and rehabilitation in the community is more likely to address the risk of reoffending. It then remains to further consider the purposes of sentencing set out in section 3A. As noted above the major purposes here must be the denunciation of this behaviour, deterrence, to protect the community, and I would add, to recognise the harm done to the community and the victims. There is also in the case of Mr Blair a real need to promote rehabilitation. A consideration of these matters in my view does not result in intensive correction order being inappropriate.

46. I note the Crown submission that the matter was too serious for the imposition of an intensive correction order and there is authority that expresses the consideration in those terms. That way of expressing the matter however should be seen as a determination that the need to protect the community and the consideration of the purposes of sentencing under section 3A means that whilst rehabilitation might be better achieved in the community, an ICO is not appropriate because of factors such as the risk posed to community safety. By the terms of the legislation if the point is reached that section 68 does not prohibit the imposition of an ICO then whether or not an ICO is imposed is determined by the application of section 66 which is the mechanism by which it will be determined whether or not the offending is “too serious” for the imposition of an ICO.

47. Whilst the offending is of a most serious type, particularly having viewed the video, when the offender’s involvement in it is broken down and his positive rehabilitative prospects, and steps already taken, are taken into account, the submission for an ICO has force. Such a sentence, particularly when almost 6 months has been spent in custody, addresses the purposes of deterrence and denunciation and protection of the community, and at the same time promotes rehabilitation. The conditional nature of the offender’s time in custody further protects the community.

Orders re Blair

49. The offender is convicted of the offences of damage / destroy property, use of an offensive weapon to intimidate in company, and aggravated break enter and steal with intent to assault occasioning actual bodily harm.

50. An aggregate sentence is imposed, noting the indicative sentences set out above taking into account the 25% discount and considering the Form 1 matter in respect of the break and enter charge.

51. The offender is sentenced to a term of imprisonment of 3 years, to be served by way of an ICO to date from 16 November 2022 and being on the following conditions:

1. To not commit any offence.

2. To submit to the supervision of community corrections, in which regard he is to report to the community corrections office at Port Macquarie no later than 23 November 2022.

3. To abstain from drinking alcohol and from taking any illegal drugs and any prescription drugs that are not prescribed to him.

4. To complete 200 hours of community service work.

Kurt Fritz

52. Kurt Fritz was born on 1in February 1998 so is now 24 years of age and was 23 at the time of the offending. He was arrested for this matter on 20 October 2021 and remained on bail until 5 April 2022 and has been in custody since that time. He was sentenced for other matters whilst in custody and the only time referable solely to this matter was 5 October to 25 October (and till now, 25 October being the initial sentence date) so a period to date of 42 days. The other offending was an offence of assault occasioning on 27 March and on 29 March a section 13 domestic violence offence, where a CCO was imposed. Those matters occurred after the current offending, so I do not take them into account for purposes other than to determine when to commence the sentence. Prior to the current offending his record commenced in 2017 at the age of 19 with section 14 domestic violence offences, then in 2019 a section 13 offence an aggravated break and enter. In 2018 and 2019 there were possess drug charges and in 2020 another contravention of an AVO. Not only does this record albeit relatively brief, deny the offender leniency it clearly suggests a history of violence.

53. Mr Fritz gave evidence. His residence changed from time to time as a child with the family ultimately settling in Grafton. When he was 15 his mother left to go to Western Australia. There had been domestic violence between his mother and father. His father was in and out of gaol, and was physical with the offender. The offender witnessed domestic violence done to his mother. His mum was a drinker and a “chuffer”, which I take to mean a user of marijuana. By 16 he was on Centrelink and using that money for himself and his siblings. As to the video played in court of the offending he said he was sorry and knew he had done wrong and would change it if he could. He acknowledged his brother (Raymond) was in the house. Bail conditions have prevented contact.

54. His partner, the victim of at least one of the domestic violence offences just referred to, was in court and was soon to have their second child. There was evidence in the form of a letter from a former employer that he would have employment available upon his release. He is working in custody and has not got any infractions, consistent with him having kept his head down. In cross examination he said he was looking for Bruce at the time and did not know about Bulla. He accepted that he had further offended whilst on bail and said that he was still drinking and using drugs at the time. He had not used drugs in custody, where he has now been since 5 April 2022. In cross examination he agreed he had tried the merit program once and was intending to do anger management and drug counselling as part of his CCO. He had not completed an earlier anger management course. These facts suggest, at least prior to incarceration, a lack of commitment to rehabilitation.

55. In support of his case there was exhibit F1, a letter written by Mr Fritz to the court dated 6 September 2022 and I infer for the purpose of the earlier sentence. He expresses his remorse and regret and apologises for his actions and the impact it had on the victim. Those comments address the offending then the subject of sentence. Relevantly to the present matter he says that being in custody has resulted in him focusing on rehabilitation and reintegrating into society. He says he has learned his lesson and addressed his anger issues and will continue to do so on release. He says his partner is pregnant with their second child clearly implying that that is motivation to not offend. I accept that, albeit guardedly given that lack of impact his first child had on his illegal behaviour.

56. Exhibit F2 confirms his partner is expecting her second child on 12 December 2022. It is a letter from New South Wales Health. It says the partner has good family and social support in the Grafton area and that she and the offender have their own rental accommodation. It says that she would benefit from a permanent home and the supports that she has in place in the period leading up to and following the birth. I accept what is said in that letter. No submission was made as to exceptional hardship, rather the point of the evidence is to show that there is a prospect for a caring environment for the offender in the community.

57. Exhibit F3 was a letter from the employer Pak Lim saying the offender will have a job when he is back in the community. This letter expresses a keenness to support the offender and I take it into account.

58. Lastly was exhibit F4, a further statement of the offender. It repeats the circumstances of his childhood which I accept amount to social disadvantage. He describes his family as a lot of chaos and no structure. It sets out that prior to his mother going to WA he was with his siblings living with his mother who was often absent for days at a time drinking and smoking marijuana. At age 15 he was required to look after his younger siblings without a fixed home or food readily available. He got help from an aunt. In the circumstances some of his siblings were in trouble and he started to take drugs and drink. He says he does not want to be like his parents or his father. The statement notes that 5 of his friends have suicided since leaving school. The statement suggests he felt the need to protect his brother from a house invasion and admitted to police he hit a car with wood. That does not align with his evidence in the witness box where he said he was telling Bruce to get out here with no reference to his brother.

59. In the statement he talks of being triggered by a certain events and acting upon them with anger. He refers to a party at around the same time where his partner had attended and was sexually abused though that seems to amount to somebody trying to stop her from leaving the party. Just what time or other connection that has to the present offending is not clear.

60. Parts of this statement reflect poorly on the offender in terms of insight and a failure to frankly acknowledge his wrongdoing, and the seriousness of his behaviour. Favourably for him it does show, and I accept, a background of significant social disadvantage.

61. In the sentence assessment report dated 13 October 2022 reference is made to a negative circle of friends in the Grafton area. His plan is to first reside with his mother and then relocate to Grafton which is somewhat at odds to assisting his partner in the almost immediate future birth of his child. The partner told the report writer the relationship was supportive and loving but had experienced turmoil in recent months prior to the offending due to illicit substance misuse.

62. The offender was employed prior to custody.

63. The offender said he initially intended to assist his brother but due to the brothers response to his presence became angry and aggressive. With respect that makes little sense. Favourably the report says contact with third parties indicates a significant shift in attitude during custody and he is now motivated apparently to address his criminogenic risks.

64. He is open and willing for intervention and community service work. He history of supervision is of having breached an ICO by reoffending and failing to attend programs but otherwise engagement has been satisfactory. He was assessed as a low to medium risk of reoffending.

65. In respect of Mr Fritz I find that he is a person who has clearly suffered a background of social disadvantage. His upbringing as a child was chaotic and placed upon him responsibilities far beyond his ability to deal with. The environment he developed in was one where substance abuse and domestic violence was common as was an abandonment of responsibility by his parents towards the children. For these reasons his moral culpability should be seen as less with the consequence that not only should there be some leniency towards him but he is a less appropriate vehicle for deterrence both general and specific; in this regard see both Lloyd [2022] NSWCCA 18 at [52], citing Millwood [2012] NSWCCA 2. There is no direct evidence here of a direct causal connection, but even then the offender’s background remains a relevant matter to take into account in the sentencing considerations. Further, this finding does not mean that the sentence should not have some weight in respect of those deterrent purposes of sentencing.

66. Parts of what the offender now says are not very persuasive as indicated above. That said, I accept that whilst in custody his attitude has improved and his resolve to address his criminogenic risk factors such as his anger issues and substance abuse has firmed. I also find that he is remorseful of his actions.

67. Mr Fritz is also still youthful. This adds some further favourable weight to the prospects of his rehabilitation and thus to seeking to structure a sentence that may promote rehabilitation.

68. In the submissions of the offender the written submissions focused on a significant finding of special circumstances predominantly to assist in his rehabilitation. In oral submissions it was also submitted that an ICO may be considered appropriate.

69. It is to be remembered that Mr Fritz is to be sentenced for two matters not three and was not a co-offender in respect of the aggravated break and enter, the most serious of the offences. His direct involvement with the offending lasted for less than three minutes. The degree of criminality in his conduct is less than either of Mr Blair and Mr Gordon. Bearing in mind the principle of parity the sentence for Mr Fritz for those offenses must be less than for Mr Blair. Not only is the objective seriousness less but the case subjectively for Mr Fritz is more persuasive.

70. The purposes of sentencing requiring most focus here are as for Mr Blair discussed above.

71. I would proceed by way of an aggregate sentence and would set indicative sentences as follows: in respect of the damage property matter of 2 years before the discount so 18 months after the discount and 3 years for the use of offensive weapon in company with the intention of intimidating so 22 ½ months after the discount. The appropriate aggregate term I consider to be 2 ½ years. This result means that a ICO is not prohibited by section 68.

52. I adopt the consideration of section 66 just gone through in respect of Mr Blair in terms of what is necessary to consider. The facts are obviously different. I note that by s66(1) the paramount consideration is community safety. With Mr Fritz his recent record suggests he is likely to reoffend and is not so likely to benefit or rehabilitate in the community. It cannot be said, as can be said for Mr Blair, that he has taken steps of distancing himself from antisocial peers and gone about gaining skills with a view to becoming prosocial. Of course Mr Fritz has spent more time in custody than Mr Blair though only a short period more and in the initial period of not being in custody carried out further offences of violence. Nevertheless, the evidence is of an attitudinal shift occurring in custody, where Mr Fritz has most recently been, and prior to this offending his most significant offence was back in 2019 of an aggravated break and enter in company. He was 21 at that time. I take these matters into account, and act also on the basis of the paramount consideration identified by s66(1).

53. Again carrying out the section 66(2) assessment is difficult with no evidence to consider what programs or other rehabilitative benefits are available in custody. It can be said that his attitude in custody has changed though query what further benefit of being in custody would accrue if that change has taken place. If the offender was to be under the supervision of community corrections by way of an ICO he would have available the supervision plan set out in the sentencing assessment report. And whilst I have noted that having one child did not deter his criminal activity there must be a prospect that some sense of responsibility towards his two children will develop as he claims it will. It favours the offender that he does have a history of working in the community and has an offer of work upon his release. His claim that he will go to Kempsey and then come to Grafton is at odds with other evidence and one would hope that he immediately upon release takes up work and gives assistance with the new baby, which in my view is the more logical reading of the evidence.

54. On balance I consider the prospects of his reoffending will be less if an ICO was imposed rather than remaining in custody.

55. By section 66(3) it remains to consider the other purposes of sentencing and of course bearing in mind the paramount consideration of community safety. The time already spent in custody provides some but not the whole of the necessary deterrence required for this serious offending and also some but not all of the denunciation and protection of the community. That time in custody coupled with an intensive correction order, which whilst able to be viewed as a more lenient outcome remains a sentence of imprisonment, with full-time custody the Damocles sword hanging over the offender’s head should he not comply with it, in my view it does meet the other purposes of sentencing, and appropriately addresses the paramount consideration.

56. The result therefore is that I consider that there should be a term of imprisonment to be served by way of an ICO. As to the term of that ICO there has been 21 days of custody referable to this matter only. In all the circumstances I do not think there should be any backdating of the sentence beyond 5 October. These orders will be made on 16 November, a period of approximately six weeks since that date. The ICO will be for a period of two years and four months.

Orders re Fritz orders

77. In respect of the destroy / damage property offence and use offensive weapon in company with intent to intimidate offence the offender is convicted.

78. I have indicated the indicative sentences above having taken into account the 25% discount and impose an aggregate term of imprisonment of two years and four months after making allowance for time spent in custody.

79. Order that the term of imprisonment be served by way of the imposition of an intensive correction order to date from 16 November 2022 and expiring on 15 March 2025 and to be on the following terms:

1. That the offender commit no offence;

2. That the offender submit to the supervision of community corrections. To that end I direct the offender to attend at the Grafton office of community corrections by no later than 23 November 2022.

3. That the offender abstain from drinking any alcohol and of taking any illegal drugs or any prescription drugs not prescribed to him.

4. That the offender carry out 200 hours of community service work.

Liam Gordon

80. Mr Gordon was born in March 2001 so he is presently 21 and was 20 at the time of the offending. He is the youngest of the offenders to be sentenced. He provided a statement which was exhibit G2. He too is an indigenous man. He adopted what was set out in the psychologist report. That is, what he said in that report he says is true and there is no challenge to the history given in that report. His background, like that of Mr Fritz, clearly shows a background of social disadvantage. At the age of five he moved to be with his nan and auntie and then DOCS put him in the care of his auntie. I infer his mother was unable to care properly for him. For a time he lived in Casino on a mission which he described as being like the ghetto. He said there were always fights and parties. He remembers seeing his mother being bashed more than once. When with his auntie and nan they went to church and he described it as good. He tried marijuana at age 10 and really started using it when he was 15 or 16 and uses it every day when he can. His first drink was at 13 but he did not start drinking a lot until he was 15. He said he does not drink that much, only once a month or once every two months.

81. He said he was disappointed in himself and did not know why it (the offending) happened. He said he would not have done it if he had known the children were there. He says he was stressed out and thought there were more “boys” there (in the house) than there were.

82. He has never had any counselling, with the psychologist who wrote the report the first psychologist he had seen. He wants to get out of Grafton and wants to attend TAFE. He has applied for Suboxone injections. He hopes this will help him stop using drugs. He said “I want to stop using drugs in the yard and that”.

83. Mr Gordon also gave evidence at the hearing. He has trouble with reading and writing. When asked some questions about drug use and the connection with his offending Mr Gordon seemed at a loss.

84. The evidence of Mr Gordon reflected a man who was significantly damaged. He seemed unable to answer basic questions. Mr Sinclair made the submission that many young indigenous men of a background like Mr Gordon have great difficulty expressing themselves, something made only more difficult when it is sought to be done in a court environment. I accept that submission. The fact remains however that Mr Gordon is 21 years old with a lengthy history of substance and alcohol abuse and seemingly without any properly considered idea as to what he would like to do with the rest of his life. Perhaps the most striking feature of his evidence was how he wanted to get onto the Suboxone program which is akin to a, if not actually, an opiate replacement program when at the time of the offending the major drug use by him was not an opiate but was marijuana. In other words, he has managed to source the drug Suboxone when in custody to the point that he now needs to be on the Suboxone program. That shows either a total lack of insight into his position or a state of despair and hopelessness.

85. Despite his background and his early drug use his criminal history only commences after having attained adulthood. In 2019 there was an assault occasioning charge and two possess charges and prior to the present offending an offence of affray and common assault. There was also a shoplifting charge and an offensive language charge. In all the circumstances this is not as bad a record as one might expect and whilst it does not result in leniency it does however suggest some prosocial tendencies that he has managed to limit his criminal behaviour.

86. A psychological report of Kris North dated 14 October 2022 was relied upon. It commences with a summary of the offender depicting a socially impoverished childhood with his mother in custody and father absent from his life. The opinion stated is that this led to his association with an antisocial peer group from a young age and the early onset of drug use and involvement in fighting and other antisocial behaviours. Future treatment should focus on substance abuse and anger management as well as addressing stable accommodation and employment. I adopt that summary and find it accords with the evidence just discussed.

87. The offender left school at the beginning of year 9 and worked for approximately five months whilst in Sydney. He had been engaged with a job agency in Grafton but struggled to obtain employment.

88. As to his drug use in addition to marijuana he used Xanax, ecstasy cocaine and methamphetamines. He described using these drugs as recreational and not issues of dependence.

89. Alcohol was denied to be a problem but at the same time there was binge drinking on the night of the offence. In my view there is a distinct lack of insight as to the impact of his use of drugs and alcohol and its impact on his life.

90. Ms North says his struggles with literacy are indicative of a learning disorder in relation to reading and writing which in turn decreased his motivation to learn and further assessment in this regard is recommended. Anger management issues were identified.

91. The opinions offered were of no specific mental health issues being present but he was assessed with cannabis use disorder. And concern was expressed as to his anger management.

92. Mr Sinclair for the offender presented detailed submissions in writing. It is conceded that the only appropriate penalty is one of full-time imprisonment. As to the term of that sentence it was submitted that there was little to delineate between the damaged property charge and the use offensive weapon charge. I accept this submission, which is in line with the approach set out above that it is the same conduct that gives rise to the two offences. Consistent with my approach with the other two offenders there is undoubtedly a significant degree of concurrency that must be accorded this offending. I have approached the other sentences on the basis of total concurrency for these two offences and do so here also.

93. As to the break and enter offence it is submitted that the aggravating factors set out in section 105A of using corporal violence or intentionally or recklessly inflicting actual bodily harm or of depriving somewhere of their liberty are unable to be taken into account. I accept that submission.

94. I also accept that the serious indictable offence attached to the break and enter matter is of the minimum period to meet the definition of such an offence. I have already dealt with the degree of injury in assessing the objective seriousness.

95. The offender was not challenged as to his statement in the psychologist report that he had been unaware of children being present at the home. He said he would not have done it if he had known that. That may well be true but the fact is that his offending behaviour occurred when the children were there. It reflects his disregard for others that he just continued on with so little point or purpose and nothing remotely like justification. I accept that the offending was not reflective of any considered planning. It was however very premeditated on the part of the offender.

96. With respect I simply fail to see how the conduct of Mr Gordon could be said to fall below the mid range of offending in terms of objective seriousness as was submitted. It is nothing short of an invasion in company leading to the destruction of a home and various motor vehicles and the particular involvement of Mr Gordon was the most serious of the offenders presently being considered, as has been discussed above in assessing objective seriousness.

97. Mr Sinclair set out the relevant authorities touching on a person experiencing disadvantaged background including Bugmy and Millwood. I have no hesitation in accepting that those principles apply here so that his moral culpability is reduced, again as has been discussed above. This results in a degree of leniency (see also Basten JA in Hoskins [2021] NSWCCA 169). As noted above however this does not mean that deterrence forms no part of the sentencing; the sentence will reflect deterrence, but tempered by this consideration.

98. Although not put quite this way, it is plain the offender’s background has led to his substance abuse issues and anti social characteristics, and in that way has indirectly been a causal factor in his offending, which can be taken into account without offending s21A(5AA).

99. I also accept that youth favours Mr Gordon. There is plainly a great need for rehabilitation and in someone so young it should so far as the facts allow be given as much priority as possible, whilst at the same time giving appropriate weight to the other relevant purposes of sentencing.

100. In trying to support a view of favourable prospects of rehabilitation the submission is made that Mr Gordon is abstinent from cannabis whilst in custody. I reject that submission. What Mr Gordon has plainly done is substitute cannabis with Suboxone which I would infer is due to availability rather than any recognition of the damage of drugs or of a need for abstinence.

101. The offender’s plea of guilty is taken into account as demonstrating some remorse and acknowledgement of wrongdoing. Beyond that there is regrettably very little evidence of any insight on the part of Mr Gordon or indeed any desire on his part to rehabilitate. The tragedy in Mr Gordon’s case is that having been so disadvantaged as a youth he now seems to have absolutely no objective as to where he would like to progress to or how he would like to get there. There is plainly a need for intervention and rehabilitation, and it needs to be promoted, but any assessment of it occurring must be guarded.

102. As to parity Mr Sinclair made some thoughtful submissions concerning the treatment of KR in the Children’s Court. The short point is that it does remain relevant to consider that KR received 20 months probation for one offence of damaging property and 24 months probation for using an offensive weapon to intimidate. The submission has greater force in respect of Mr Gordon than the other two offenders as he is the youngest of the three of them, and not far removed from KR in age. The different sentencing criteria still need to be borne in mind.

103. It was submitted that there was no basis for drawing a distinction between the culpability of the three present offenders. I reject that submission. As the breakdown of the involvement of the three offenders shows Mr Gordon was by far the most significantly involved of them. He was, with respect, out of control. It is favourable to him that his background is certainly more disadvantageous than Mr Blair’s and certainly on a par and in my view more disadvantageous than Mr Fritz’s. There is therefore a lesser moral culpability on his part but not of such a degree as to put the offending between the three of them on a par.

104. Mr Gordon was on bail at the time of the offence which aggravates the matter as does of course the fact of it occurring in a home and in the presence of children, matters which have been noted above.

105. As discussed above I accept there should be a large amount of concurrency certainly between the damage offence and the use an offensive weapon to intimidate offence. The break and enter must incur some additional sentence for the additional degree of criminality.

106. Mr Gordon has spent more time in custody than any of the offenders being sentenced presently, having been in custody since the day of the offending on 2 October 2021, for this offending only, a period of now one year one month and two weeks. Any sentence will commence on 2 October 2021 or take into account that period of custody.

107. It was submitted that there should be a finding of special circumstances due to the need for drug rehabilitation, reintegration into the community, youth, and the offender’s deprived background. I accept that submission. In addition I note the present onerous conditions of custody and that this was the offender’s first time in custody.

108. I accept that a longer period on parole will allow the community corrections to assist with treatment. I will direct that the psychologist report travel with the warrant to assist in the interventions to remain available to the offender both in custody and upon his release to parole.

109. As with the other offenders I will proceed by way of an aggregate sentence. The indicative sentences before the discount and after the discount are as follows: in respect of the damage / destroy property charge 3 years and after the discount 27 months; for the use of offensive weapon charge 4 years and after the discount 3 years and in respect of the break and enter charge six years and 4 ½ years after the discount. In my view the aggregate sentence should be 5 years to date from 2 October 2021.

110. As foreshadowed I do make a finding of special circumstances which in my view given the subjective features of the offender should be significant. Particularly due to the facts of his background and his youth I would set a non-parole period of two years.

111. This result means that section 68 prohibits the imposition of an intensive correction order, something the submissions clearly anticipated.

Orders re Gordon

112. The offender is convicted of the charges in respect of damage property, use offensive weapon to intimidate and aggravated break and enter.

113. I note I have set the indicative sentences out above having applied the 25% discount and I impose a term of imprisonment with a non-parole period of two years to commence from 2 October 2021 expiring 1 October 2023 and with a balance of term of three years expiring on 1 October 2026.

SNPP

114. In respect of Mr Blair and Mr Gordon I have determined a sentence for an offence with a standard non parole period, namely the aggravated break and enter matter. Had it been necessary to set a non parole period for that offence it would have been, in the case of Mr Gordon approximately 21 months, and in the case of Mr Blair approximately 15 months, periods which approximate the proportion reflected in the respective aggregate sentence and non parole periods. The reason this differs from the standard non parole period is because of the discount for the plea of guilty, and because of the range of favourable subjective factors discussed above

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Amendments

14 February 2023 - Amended to correct formatting

Decision last updated: 14 February 2023