R v Brady

[2020] NSWDC 865

District Court

New South Wales

Medium Neutral Citation:

R v Brady [2020] NSWDC 865

Hearing dates:

17 September 2020; 25 November 2020

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence. Orders at [37] - [41].

Catchwords:

CRIME – aggravated break and enter – multiple offences – SNPP – not enforced – offender affected by mental health problems – remorse shown - special circumstances found – ADVO orders made

Legislation Cited:

Crimes Act 1900 (NSW) ss 112

Crimes (Domestic and Personal Violence) Act 2007 NSW ss 13, 14

Crimes (Sentencing Procedure) Act 1999 NSW ss 4B, 5, 21A

Category:

Sentence

Parties:

Regina (ODPP)
Scott Michael Brady (Offender)

Representation:

Solicitors:
Ms Nettleton (ODPP)
Mr Ogilvy (Offender)

File Number(s):

2020/21212

Publication restriction:

None

Judgment

1. Scott Brady, hereafter referred to as ‘the Offender’, appears before the Court today for sentence in relation to two charges. Those are stalk/intimidate intending fear of physical harm et cetera, domestic violence, in breach of section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007(NSW). That offence carries a maximum penalty of 5 years’ imprisonment and/or a fine of 50 penalty units.

2. The second and more serious charge is one of aggravated break and enter and commit serious indictable offence (intimidation) in circumstances of aggravation, namely that he knew there were persons present within the building. That offence is a breach of section 112(2) of the Crimes Act 1900 (NSW), and carries a maximum penalty of 20 years’ imprisonment, together with a standard non-parole period of 5 years’ imprisonment.

3. The maximum penalties and the standard non-parole periods represent the community's, through parliament's, view as to the seriousness of the offending.

4. There is no doubt that aggravated break and enter is an extremely serious offence, as is reflected in the maximum penalty applicable. It covers a whole variety of offending, and it might be said this falls below the mid-range of offending for matters of that type. I will return to the objective seriousness in due course. There are also 4 charges on a Form 1, being sequences 4, 5, 8 and 10. Those charges are to be taken into account with a view to increasing the sentence which might otherwise be imposed upon the Offender, reflecting the need for specific deterrence and also the community's entitlement to seek retribution in relation to the offending.

5. There is also a further offence, being a related offence on a section 166 certificate. That is contravention of prohibition and restriction of AVO, being sequence 2, in breach of section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). When dealt with in the Local Court, a maximum sentence of 2 years’ imprisonment and/or 50 penalty units applies.

6. The offending occurred on 10 January 2020. The Offender was arrested on 24 January 2020, and bail was refused. In the Gosford Local Court on 4 September 2020, sequences 3, 6 and 7 were withdrawn and dismissed, and the remaining sequences were committed to this court for sentence. The Offender has been in custody since 24 January 2020. That date will represent the commencement date for sentence. At the time of the offending the Offender was on conditional liberty. On 13 September 2019 he was granted conditional bail at Gosford Local Court in relation to contravention, prohibition/restriction AVO (domestic), together with destroy or damage property.

7. On 24 January 2020 he was sentenced to a Community Corrections Order for 18 months, to date from 24 January 2020, for the contravention of the AVO offence. The fact that the Offender was on bail at the time of the offending is an aggravating factor, pursuant to section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The facts relevant to the offending are set out in Exhibit A. I will briefly interrupt these remarks in order to sign the Form 1 documents, certifying that in sentencing the Offender in relation to sequence 9, I will have regard to sequences 4, 5, 8 and 10. The Agreed Facts appear at tab 5 of Exhibit A.

8. The victim and the Offender have been dating on and off for about 6 years. The victim resides on Dunbar Road in Gosford. On 21 September 2018 an ADVO was granted at Gosford Local Court, naming the defendant as the Offender and the person in need of protection, Ms Ryan. The order was for 2 years, expiring 20 September 2020. The offending took place during that period. At about 7.30pm on 10 January 2020 the victim met up with the accused at Wyoming Bottle Shop. The victim drove the Offender to a friend's house and dropped him off to drink 5 long-necks of beer, while she went to get pizza.

9. The Offender's friend was not home, so he remained with the victim and was drinking in her car. The victim and the Offender went to the victim's home and gave pizza to the kids for dinner. At one point the Offender grabbed a slice of pizza from one of the children and put it in the fish tank. The victim said to the Offender, "Why did you do that? If you're going to carry on like that, you can leave. You're not even supposed to be here." The victim was referring to the current ADVO that was in place. The Offender and the victim's mother had an argument. The victim asked the Offender to leave, and he left through the front door. The victim locked all of the doors and shut the windows.

10. A short time later, the victim heard a constant banging on the back door. The victim's mother looked out the window from upstairs and said, "It's Scott". The victim said, "Just ignore it". Following this, the victim heard a smashing noise, which sounded like glass breaking. The victim went downstairs and observed the window in the laundry toilet to be broken. The victim said to the Offender, "Go away. You're not coming in". And the victim's mother recalls this occurring at about 11 pm.

11. The victim walked back upstairs, and then heard a noise from downstairs. The victim went back downstairs and observed the Offender at the bottom of the staircase. The Offender kept saying, "I want my stuff. Give me my stuff". The victim did not have any of the Offender's property. The victim cannot recall whether the Offender then opened the back door or she did, however she does recall that she started to push him out the back door. The victim was able to get the Offender outside, at which time she closed the back door and locked it again.

12. The victim was standing in the kitchen when she heard a crashing sound and observed the back door swing open. The Offender fell to the ground at the door after losing his footing. As a result, the locks on the rear door were damaged. The victim's mother came downstairs, and they both pushed the Offender out the back door. They told the Offender to leave and informed him that they were calling the police. At this point, the Offender left the back yard.

13. Since the incident, the victim has noticed a petrol smell, however she is uncertain as to when that occurred, or whether it had any relation to the subject offending. The last time the victim saw the Offender, on this occasion, was about 1 am. The victim's children were home during the incident. The victim was not injured as a result of the incident.

14. On 11 January 2020 at about 1.10 am, police attended the victim's address. Police observed a broken window in the back laundry, which can be accessed via the backyard. Police also observed damage to the back door. The hinge was damaged, as was the door, within the area of the locking mechanism. Crime scene photographs were taken of the damage to the rear door, the smashed window, the open bathroom window on the first floor and the location where petrol was spilt. Police walked into the back yard and could smell a strong smell of petrol in the back yard. Police located a jerry can outside on the ground among an assortment of other household objects.

15. Police patrolled the Gosford area and could not locate the Offender. At about 9.50 am on Friday, 24 January 2020, police at Gosford Local Court became aware that the Offender had an outstanding warrant for his arrest. They spoke to his solicitor, who advised police that he was advised not to participate in an electronic interview. The Offender was arrested under the warrant, and was taken back to Gosford Police Station. Those are the Agreed Facts.

16. The Offender has a history of offending in a similar manner, which not only disentitles him to any leniency which might flow otherwise from a finding of good character, but in my opinion aggravates his offending. However, being subjective in nature, this does not affect the objective seriousness of the offending itself. In the Crown's submissions, a summary of the ADVO and domestic violence matters pertaining to the same victim are set out. Since his incarceration earlier this year, there have been two infringements: one for fighting or other physical combat, and the other for possess offensive weapon/instrument. However, there is no further information available to the Court as to what those matters relate.

17. Exhibit B comprises 2 transcripts of proceedings in the Local Court relating to the Offender on 18 July 2017 and 24 January 2020. It is apparent from those transcripts that there is a connection between the Offender's self-induced intoxication and the domestic violence matters which have come to the attention of the Court. It was submitted on his behalf on 18 July 2017 that the victim was prepared to support the Offender, but she acknowledged further that alcohol has always been a problem and that unless he addresses that, he is going to reoffend and he will end up spending a fair majority of the rest of his life in an institution.

18. On this occasion, on 24 January 2020, there was a statement made by the magistrate (at T2.3), where the Offender was admonished about his alcohol consumption. The Sentencing Assessment Report dated 17 November 2020 (Exhibit C) indicates that the Offender is single with no dependants, and intends to reside in rental accommodation provided by his employer upon release from custody. He gave evidence about that today. His employer has a unit at Revesby where the Offender intends to live upon release.

19. The author of the report noted that the Offender accepted responsibility for the history of domestic violence related to convictions, although displayed a limited insight into the reasons behind his relationship issues, and tended to blame those matters on his partner and on alleged substance abuse. Nevertheless, he demonstrated some insight into the impact of his offending, and was assessed as being a medium-low risk of reoffending. The Offender gave evidence today. I should say at the commencement that I considered him to be an impressive witness, whose evidence I accept.

20. The Offender told the Court that he has one brother. His mother lives in Coffs Harbour, and his father in Forster. His parents separated when he was 18 years of age. His father was a truck driver. He came home and slept Saturdays, and went away in the truck Sundays. The Offender was diagnosed with ADHD when he was about 6 years of age. For 90 per cent of his life the Offender has been taking medication for ADHD. At times he has not been compliant with his medication requirements. At the time of the offending he had been off medication for some 8 months, as he was unable to take time off work so he could consult a doctor to obtain a script in order to get the medication.

21. In the course of his evidence he acknowledged that his relationship with the victim is over, and he understands that he cannot return to that relationship. He explained that the relationship with the victim was different to previous relationships. He had 5 previous long term relationships, none of which involved domestic violence. This relationship was the first where there had been children involved, and it was also the first where the family unit was financially dependent upon the Offender. He thought these factors may have been differences in the relationships explaining the domestic violence matters.

22. Nevertheless, he said that he accepts total responsibility for his actions and acknowledges that alcohol is an issue, and that failing to take his medication contributed to the offending. He has realised since he has been in custody that he has a real problem with alcohol, and he told the Court that he is not drinking again. He has said that he has undertaken a number of courses in custody, including a domestic violence course at John Morony and the Positive Lifestyle course at Parklea. He intends to complete the EQUIPS program, either in custody or in the community. He said that he was very sorry for what happened to the victim and understands that she and her mother would have been frightened on the night. He said in Court today that he cannot believe it happened.

23. He also acknowledged the impact of his offending upon the children to the relationship, and was concerned that it may impact their acceptance of future partners of the victim. He said that he was very sorry and wished he could have been a better person. He has accepted that he needs to remove himself from conflict situations, take time out for new strategies such as going fishing or walking. He has a very strong work history. He has been a carpenter, employed for about 15 years installing cladding to the exterior of high-rise buildings, generally in Sydney and its suburbs.

24. He supervises 10 or 11 men on site, organising and supervising the installation of the facades and exteriors of buildings. His employer has indicated that he will provide employment to the Offender upon his release, as well as accommodation. The time in custody has been difficult, not least because he has had no face-to-face contact with visitors, by reason of the COVID restrictions. Plainly, COVID will impact this Offender like all others, in that it will cause additional hardship in custody. I accept the Offender is remorseful. I find remorse at the statutory level.

25. The offending is aggravated by the following matters, pursuant to s21A:

1. the Offender has a record of previous convictions of the same type;

2. the offence was committed in the home of the complainant; and

3. the Offender was on conditional liberty at the time of the offending.

26. It was submitted on behalf of the Offender that the following mitigating factors apply:

1. the offending was spontaneous and did not involve any planning or organisation. I accept that submission and make that finding;

2. the Offender has good prospects of rehabilitation. Accepting the evidence of the Offender, I consider that he does have at least reasonable prospects of rehabilitation;

3. I have previously noted that the Offender is remorseful; and

4. the entering of a guilty plea at an early point in time.

27. I find the risk of reoffending is low. It was conceded on behalf of the Offender that the section 5 threshold had been crossed, and a number of authorities were referred to in the submissions provided on behalf of the Offender. I have also had regard to Exhibit 1, being 2 letters from Peter Fairclough, his employer, which speak highly of the Offender and also provide assurance as to the availability of both employment and accommodation upon release.

28. I am also assisted by the Crown submissions, MFI 1. Concerning the charges on the Form 1, I have had regard to the Crowns of submissions at page 3. In relation to sequence 4, that is the destroy damage property (being the fly screen and frame), I accept the submission that it falls in the low range of objective seriousness. In relation to sequence 5, being damage to the garden chair et cetera, I accept the submission that it falls in the low range of objective seriousness. In relation to sequence 8, that is the destroy damage property (property of Melinda Ryan), I accept that it falls in the low range of objective seriousness.

29. In relation to sequence 10, being another charge of aggravated break and enter with people there, I find that it falls below the mid-range. In relation to sequence 2, being the matter on the 166 certificate as a related offence, I consider that also the objective seriousness of the offending is not increased by reason of the prior convictions in relation to similar breaches. Plainly, they are matters of aggravation to take into account in relation to the sentence generally. In relation to sequence 1, intimidation, the Crown submitted that it fell towards the low range. I accept that submission and make that finding.

30. In relation to sequence 9, namely aggravated break and enter, the Crown submitted that a fell in the mid-range of objective seriousness. Having regard to the breadth of the offences which are captured by this provision, I find that the objective seriousness of the offending in relation to sequence 9 falls below the mid-range, thereby justifying the departure from the standard non-parole period, which is to be taken into account in respect of offences which fall at the mid-range (having regard only to the objective circumstances). Otherwise, the standard non-parole period of 5 years is yet another guidepost for a sentencing judge consider in determining the appropriate sentencing outcome.

31. The Crown made submissions as to aggravating factors, consistent with those conceded by the Offender. At page 9 and 10 of the Crown submissions, a table helpfully sets out the history of previous orders made in relation to domestic violence contraventions and orders. I have had regard to that table in making the finding that the aggravating feature of prior criminal record is enlivened. Having considered all of the circumstances relating to the offending, I find the section 5 threshold is crossed; that is, that no sentence other than one of imprisonment by way of full-time custody is appropriate.

32. Before imposing a sentence, the Court is mindful of the purposes for which sentences may be imposed and, plainly, in every case a sentence must be adequate. That is, the sentence must appropriately reflect the overall criminality of the offending. The sentence must also deter both the Offender and others from engaging in like behaviour. In view of the Offender's criminal history, the need for specific deterrence arises in relation to his conduct and in the community generally. The need for general deterrence is present. There is also a need to make the Offender accountable for his actions, and to denounce his conduct. Weighed against those matters is the need for rehabilitation, which will be assisted by an extended parole period so that he may obtain assistance in the community.

33. In relation to that question, I consider that special circumstances arise. The Offender would benefit from an extended period on parole in order to address his addiction to alcohol which seems to be the trigger, if not the cause, for the offending of this type. Whilst there may be courses available in prison which could assist him in the meantime, I consider that that issue is best dealt with in the community.

34. I intend to impose an aggregate sentence. Before doing so, it is necessary to provide indicative terms. In relation to sequence 1, that is the section 13(1) breach, stalk intimidate, I provide an indicative term of 12 months, after a discount of 25% on account of the guilty plea.

35. In relation to sequence 9, that is aggravated break and enter, I provide the indicative term after discount of 3 years.

36. In relation to sequence 2, that is contravene a prohibition restriction AVO, I provide an indicative term of 3 months.

37. Mr Brady, you are convicted of the following 3 offences:

1. stalk intimidate, intent to cause fear, physical harm et cetera in domestic context in breach of section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007;

2. aggravated break and enter and commit a serious indictable offence, the aggravation being that you knew that people were at home, in breach of section 112(2) of the Crimes Act 1900; and

1. contravention of a prohibition or restriction in an AVO, in breach of section 14(1) of the Crimes (Domestic and Person Violence) Act 2007.

38. In relation to those 3 convictions, I impose a sentence of imprisonment of 3 years. Although it is open to me to consider the possibility of an Intensive Corrections Order, in my view, absent evidence as to the safety of the victim, section 4B of the Crimes (Sentencing Procedure) Act would prevent such an order being made. Accordingly I order that the sentence be served by way of full-time custody, commencing on the date the Offender went into prison, which was 24 January 2020. The head sentence will expire 23 January 2023. I impose a non-parole period of 18 months, commencing 24 January 2020 and expiring 23 July 2021, at which time you will be eligible to be released on parole.

39. So the effect of the sentence, sir, is that you will be released on parole on 23 July next year, and then you will be on parole for a further period of 18 months through to the 23 January 2023, and during the parole period I recommend to you that you pursue such courses and other rehabilitation that might address your consumption of alcohol and the connection between alcohol consumption and acting out.

40. OFFENDER: Yes, your Honour.

41. HIS HONOUR: On the application of the Crown and without opposition by the Offender, I make a final order for an apprehended domestic violence order for a period of two years commencing today, 25 November 2020, expiring 24 November 2022. The conditions attaching to the order are condition 1, condition 2 and condition 8, noting the address for condition 8.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 41 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Decision last updated: 08 March 2021