R v Broadhurst

[2020] NSWDC 853

District Court

New South Wales

Medium Neutral Citation:

R v Broadhurst [2020] NSWDC 853

Hearing dates:

15 December 2020

Date of orders:

15 December 2020

Decision date:

15 December 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Aggregate sentence of imprisonment of 4 years 3 months with a non-parole period of 1 year 9 months

Catchwords:

CRIME — Domestic violence — Stalking or intimidation

CRIME — Violent offences — Aggravated robbery — With corporal violence

SENTENCING — Relevant factors on sentence — Multiple offences

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Purposes of sentencing

SENTENCING — Sentencing procedure — Reasons for sentence

SENTENCING — Subjective considerations on sentence — Special circumstances

Legislation Cited:

Crimes Act1900

Crimes (Domestic and Personal Violence) Act2007

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Evidence Act1995

Cases Cited:

Callaghan v R (2006) NSWCCA 258

Imbornone v R [2017] NSWCCA 144

Markarian v The Queen [2005] HCA 25

Muldrock v the Queen (2011) HCA 39

Qutami v R [2001] NSWCCA 353

Tepania v the Queen [2018] NSWCCA 247

Category:

Sentence

Parties:

Regina (Crown)
Garrath Sydney Broadhurst (Offender)

Representation:

Dean Robinson (Crown Prosecutor)
Michael Farrar (counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Australian Criminal Law Group

File Number(s):

2019/00159357

REVISED EX TEMPORE JUDGEMENT

Introduction

1. The offender Garrath Broadhurst was presented for trial in the District Court of New South Wales at Sydney upon three offences contained in the indictment.

2. Count 1 alleged that he on 20 May 2019 at St Marys in the State of New South Wales robbed CL of a mobile phone, the property of CL, and at the time of robbery used corporal violence on CL. The offence is contrary to s 95(1) Crimes Act1900.

3. Count 2 alleged that he on 20 May 2019 at St Marys in the State of New South Wales did break and enter the dwelling house of CL, XX XXXXX Street, St Marys, and committed a serious indictable offence, namely intimidation, in circumstances of aggravation, namely that he knew there were persons present inside the house. This offence is contrary to s 112(2) Crimes Act 1900.

4. The third offence alleged that he on 21 May 2019 at St Marys in the State of New South Wales intimidated CL with the intention of causing her physical or mental harm. This offence is contrary to s 13(1) Crimes (Domestic and Personal Violence) Act2007.

5. The jury was not called upon to return a verdict in respect to count 3 because the offender pleaded guilty to that offence in the initial stages of the trial. The plea was entered on 24 September 2020, but he defended the offences charged in counts 1 and 2, whereupon the jury returned verdicts of guilty in each case on 7 October 2020.

6. Thereafter the matter was adjourned for the determination of sentence with the opportunity for the parties to assemble material on which they intended to rely for the determination of the sentences to be imposed.

The Maximum Penalties

7. The offence of aggravated robbery using corporal violence, contrary to s 95(1) Crimes Act 1900, has a maximum penalty of 20 years imprisonment. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

8. The offence of aggravated break and enter and commit serious indictable offence, contrary to s 112(2) Crimes Act 1900, has a maximum penalty of imprisonment for 20 years. There is a standard non-parole period specified for this offence of five years.

9. The offence of intimidation, contrary to s 13(1) Crimes (Domestic andPersonal Violence) Act 2007, has a maximum penalty of imprisonment for five years and a fine represented by 50 penalty units.

Pre-sentence Custody

10. The offender has been in custody since he was arrested for these matters on 22 May 2019. He was refused bail and remained in custody since that time, however within the period since that date he was required to serve sentences of imprisonment for other offences.

11. These were, reference H69854987, contravening an apprehended violence order, to which he was subject, put in place for the protection of the victim in this matter.

12. The offender breached the orders made by conduct which included 521 text messages sent to the victim’s phone number.

13. For that offence ultimately he was sentenced to imprisonment for a period of 18 months commencing on 13 January 2019 with a non-parole period of six months expiring on 12 July 2019, the overall sentence expiring on 12 July 2020.

14. In sequence H68442030 he was charged with contravening an apprehended violence order put in place for the protection of the victim in this matter. The conduct on which that charge was brought included a series of 21 recorded telephone calls made to the victim whilst he was in custody, all captured on the system in place in Corrective Services to monitor calls made by inmates from the Centre.

15. In the course of that conduct he represented the victim as a person named Sam but in the course of the conversations apparently inadvertently fell into error identifying the victim by her given name. Some of the conversations included the proposition that if she did not go to court his circumstances would be not as challenged.

16. For that offence he was sentenced to imprisonment for 18 months, including a non-parole period of six months, commencing on 13 January 2019, the non-parole period expiring on 12 July 2019, then the overall sentencing expiring on 12 July 2020.

17. It is to be noted that in respect of those matters he was initially given conditional liberty by way of Community Corrections Orders which in due course were breached and resulted in terms of imprisonment, which were later modified on appeal from the Local Court to a District Court leading to the sentences that I have announced.

18. Whilst he was in custody there were two escapes. The first, sequence H71480264, resulted in a sentence, including a non-parole period of 11 months commencing on 22 May 2019 and expiring on 21 April 2020, with a further three months when he was eligible for parole, to expire on 21 July 2020. The next event, H139073802, resulted in an identical sentence.

19. Once again these sentences were determined on appeals from the orders made by a Magistrate when he exercised his rights of appeal to the District Court.

20. Thus, the overall pre-sentence custody for other offences in aggregate comprise a non-parole period of 15 months from 3 January 2019 to 21 April 2020, with a further three months during which he would have been eligible for parole to expire on 21 July 2020.

21. Part of my task is to determine when I should commence the aggregate sentence I shall impose today. I have come to the view that I should commence the sentence to date on 1 January 2020. I have chosen this date predominantly for the reason that the sequence of conduct upon which the offender was engaged, including that which was the subject of this trial, involves a continuum of behaviour arising from the breakdown of his relationship with the victim, that relationship having been blessed with the birth of two children.

22. Moreover it is important to ensure that the overall punishment that he has to suffer because of the misconduct for all of this behaviour is not more than he ought to suffer in the circumstances, reflecting what is known as the totality principle. Thus, the sentence I impose today will commence on the date specified, and there will be a reduction in the custodial component of the sentence I impose today to reflect the custody that he has served up until that date, and to reflect the special circumstances that I find exist in this case requiring a longer period on parole under supervision for this offender.

23. The discretion available to me is well known, found in a discussion offered by Simpson J in Callaghan v R (2006) NSWCCA 258 beginning at para [23].

S 166 Criminal Procedure Act 1986

24. I have already dealt with a further offence before me by way of s 166 Criminal Procedure Act 1986, sequence 9 in the series H73827581, an offence of contravening an apprehended violence order when the offender attended the victim’s home in the commission of these offences upon which I am to impose sentence today.

25. He has been convicted of that offence upon his plea of guilty and I have exercised my powers under s 10A Crimes (Sentencing Procedure) Act 1999 imposing no penalty.

The Standard Non-Parole Period

26. It is important to note the significance of the standard non-parole period for the offence charged in the second count on the indictment.

27. The provisions introducing standard non-parole periods are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999, amended to their present form after the decision of the High Court of Australia in Muldrock v the Queen (2011) HCA 39.

28. The standard non-parole period for an offence is that which is included for it in the table to these provisions. It represents the non-parole period, taking into account only the objective factors affecting the relative seriousness of an offence that falls within the middle of the range of objective seriousness.

29. The standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The Court must record its reasons for setting a non-parole period that is longer or shorter by identifying each factor taken into account.

30. The objective gravity of all of these offences must be assessed upon consideration of the objective factors affecting the relative seriousness without reference to matters personal to the offender, or class of offenders, but by reference to the nature of the offending, and bringing to account relevant factors in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence.

31. In Tepania v the Queen [2018] NSWCCA 247 Johnson J at para [110] discussed the provisions including subsection (6) of s 54B which provides that:

“The abstract concept of a standard non-parole period assessed in accordance with these provisions does not require the Court to identify the extent to which the seriousness of the offence in question differs from the abstract, notional, or theoretical offence referred to in s 54(2).”

His Honour continued at para 112:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder, or a mental impairment. It was recognised at common law that a motive or emotional stress which accounts for criminal conduct is always material to the consideration of the appropriate sentence... Motive for the commission of an offence is an important factor on sentence.”

32. His Honour went on to discuss moral culpability and the flexibility with which that term is used in the general law of sentencing and noted that a mental abnormality, and perhaps one might include psychological challenge, might diminish moral culpability but an antecedent criminal history might also illuminate the extent of moral culpability. Limited moral culpability might mean that retribution and denunciation did not require significant emphasis.

33. His Honour also noted that the circumstances of an offender affected by an environment in which the abuse of alcohol or violence is common must also be taken into account when assessing his personal moral culpability balanced against the seriousness of the offending.

34. Applying these principles, if one were to come to the view that this offending fell within the mid-range of objective seriousness it does not follow that the standard non-parole period would apply, or that some other period should be identified calculated arithmetically upon where the offence might be found to fall above or below mid-range. Such an approach is contrary to principle as discussed by McHugh J in Markarian v The Queen [2005] HCA 25.

35. The Court is to embark upon a process of intuitive synthesis bringing to account all of the relevant objective and subjective factors to determine the appropriate sentence for each of these offences. Those sentences must then be accumulated or made concurrent as is appropriate to reflect the totality of the offending for which the Court is concerned.

36. The standard non-parole period, upon the application of these principles, and the maximum penalty, are legislative guideposts for the Court, along with other established sentencing practices by reference to matters identified where relevant in ss 3A, 21A and 22A of the Act.

37. I am of the view that the objective seriousness of these offences is in each case below mid-range. I shall identify the various considerations that have led me to that view when I rehearse the facts upon which sentence is to be determined. These include the relatively short period of time in which the offences occurred, that they were not, in my view, planned episodes of criminal misconduct, but were prompted by the offender’s emotional response to circumstances as he perceived them. There was limited, if any, harm occasioned to the victim of the offences.

38. I have also brought to account what was apparently a challenging period in his formative years because of his father’s propensity for domestic violence, discussed by the psychologist.

39. I have also brought to account that he has a record of antecedents which is quite extensive and that he was subject to conditional liberty at the time of the offences. These factors, though aggravating, do not increase the objective seriousness of the offending, or the sentence that is otherwise proportionate to the misconduct, but it does inform matters of specific deterrence and the extent to which it might be considered that the offender has a demonstrated capacity for rehabilitation.

40. The offence occurred in the victim’s home when she and his children were present, albeit not immediately proximate to the initial misconduct that escalated into further violence.

Remorse

41. I am not satisfied that the offender has shown that he is remorse for the misconduct of which he has been found guilty.

42. Section 21A(3) Crimes (Sentencing Procedure) Act 1999 provides for mitigating factors to be taken into account when determining the appropriate sentence, these include, in para (i):

“The remorse shown by the offender for the offence, but only if:

(i) The offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) The offender has acknowledged any injury, loss or damage caused by his or her actions, or made reparations for such injury, loss or damage (or both).”

43. There is material before me whereby the offender has expressed regret, and is attributed with expressions of regret, but it is not clearly enunciated that his state of mind in that regard is referrable to the misconduct of which he was found guilty, and I am not satisfied that he has discharged the burden upon that point.

The Complainant

44. The trial was relatively short and depended ultimately upon the evidence from the complainant, who I would observe was not entirely compliant with the presentation of the case by the Crown. Indeed in the course of the proceedings it was necessary for the Crown to resort to s 38 Evidence Act1995 to bring to her attention prior representations that were not consistent with what she had asserted in the course of her evidence, but in due course she embraced what she had said on earlier occasions and asserted a description of the events which established each of the elements of the offences that were before the jury.

45. Her reticence, which I find she exhibited, was also consistent with material that was tendered in the course of the trial in the form of a document which was prepared in conjunction with another family member, and with handprints provided by her children to assist the offender who was said to be struggling in his incarcerated circumstances.

46. Indeed in the course of her evidence she conceded readily that the offender was a good father and that he loved his children, notwithstanding that the relationship between the offender and the victim had broken down.

The Offender’s Motivation

47. It was said to me in the course of the submissions that I would find the behaviour arose in circumstances where the offender was concerned about the welfare of his children. I recall that was the subject of some argument in the course of the trial when questions were put to the victim about a telephone call which was said to include the proposition that her new partner, or boyfriend, was engaged in sexual activity with her in circumstances that were sought to be elicited.

48. I am not satisfied that the offender’s motivation in the commission of these offences was predominantly the welfare of his children, although I would accept that the welfare of his children is a consideration that exercised him, and continues to do so. I find that the offender’s conduct is to be sourced in his need to control the circumstances of the relationship that he had with the victim prompting him to anger and behaviour which led to his arrest and prosecution for these offences.

The Facts

49. The parties helpfully summarised the facts which I am urged to find in relation to the matter. I have reviewed the document. They are consistent with the view I have of the evidence. It is my task to determine the appropriate sentence for each of the offences upon findings of fact reached upon a consideration of the evidence consistent with the verdicts returned by the jury. I am required to form my own view of the facts accordingly.

50. Any conflict does not require that I attend to findings of fact more favourable to the offender, though facts relevant to the nature and seriousness of the misconduct must be established to the standard beyond reasonable doubt and matters in mitigation upon which the offender would rely may be established on the balance of probabilities.

51. It must be the case that the jury accepted the victim as truthful and accurate beyond reasonable doubt in respect of the conduct founding the offences of which the offender has been found guilty. This is so notwithstanding that it was acknowledged by her that she had been untruthful in past circumstances. The victim had made a false statutory declaration which, in the absence of the jury, was the subject of her application for a certificate pursuant to s 128 Evidence Act 1995, but which left available to the offender the opportunity to test her veracity upon the past false representation.

52. All of that said the facts that have been summarised shortly are consistent with the view I have taken of them on the application of those principles to which I have referred.

53. The background of this misconduct is found in the relationship between the offender and the victim. They were in a de facto relationship for some seven years. They lived together for some time before the commission of the offence.

54. The victim has a daughter from a previous relationship and two children born to her in the course of her relationship with the offender.

55. The relationship was described as “on again off again” and in April 2018 they broke up. She moved out of their shared residence in Rooty Hill, taking the children with her. She moved to the address at St Marys.

56. About April 2018 she sought and was granted an apprehended violence order with standard conditions but this was not served.

49. In April 2019 she sought and was granted a non-contact apprehended violence order.

50. After their separation the offender and the victim had a private arrangement in relation to the children. He provided her with a car, a Mitsubishi Lancer with personalised plates, as part of his contribution toward the children. On 19 May 2019 he took the vehicle back.

51. The offence of aggravated break and enter with commit serious indictable offence occurred in the following circumstances.

52. On the evening of 20 May 2019 the complainant was at home cooking in the kitchen and talking on the phone to her friend, Ms Pikse. From the kitchen the view to the front door of the premises was obscured. The front door consisted of a wooden security door and a screen door. The wooden security door was unlocked and open; the screen door was unlocked but was closed.

53. On that date the offender was subject to a non-contact apprehended violence order. He drove with his housemate, a man named Sean Norman, in Mr Norman’s black Commodore to the St Marys address. The offender’s mother drove separately.

54. He opened the front door, entered the house, and yelled at the complainant as she was on the phone, “You fucking slut, you’ve got another boyfriend”. She turned to see the offender. She said to Ms Pikse, “Call the police” before hanging up and attempting to dial triple-0 herself.

55. The offender grabbed the complainant by the throat in the commission of the aggravated robbery and use of corporal violence. He took the mobile phone from her. They moved towards the front door and outside onto the front lawn.

56. The offender hit the complainant with his hand to the left of her jaw, they engaged in a tussle, and the complainant grabbed the offender’s shirt and kicked him. The offender’s mother and the offender’s housemate were present but did not engage in the altercation.

57. The offender left the premises with Mr Norman in his car and his mother left in her car.

58. As was pointed out in the course of submissions the conduct of the offender, having struck the complainant with his hand to the jaw, was the subject of some inconsistency. The evidence included the strike to the face but there was also reference to her having been struck in the chest. I do not in the circumstances need to resolve that inconsistency, either way such behaviour amounts to corporal violence.

59. The offence of intimidation occurred in the early morning of Tuesday 21 May 2019 when he made several phone calls to the victim. He was intoxicated and upset over the events that had occurred. The calls were described as harassing and intimidatory in nature due to the time and quantity of them. They related to the incident that was the subject of the charges in counts 1 and 2 and the complainant’s new boyfriend whom the offender deemed unsuitable to be her partner. His perception is that the person was a person of bad character.

60. In the trial there was no evidence regarding the charge of intimidation because that was the subject of the plea of guilty, although it was indicated in the early stages of the trial that there would be some challenge to the Crown’s position and to the offender’s position with regard to that offence. Ultimately the parties have settled upon the facts which are articulated in paras [20]-[23] in the document which I have, included in the Crown bundle exhibit A.

The Offender

69. Regrettably the offender comes before the Court with an extensive record of antecedents; some of these include the matters that led to his imprisonment while he was awaiting the trial for the present offences.

70. The first court date was in February 2000 in the Penrith Local Court where he was convicted in his absence of receiving stolen property. Then in April 2000 he was fined for a street offence.

71. The receiving offence resulted in a recognizance pursuant to s 558 Crimes Act 1900 imposed on 30 March 2000.

72. In May 2000 he was fined for a series of offences: using an unregistered vehicle, using an uninsured motor vehicle, not obeying a direction of a police officer, driving whilst unlicensed, and driving with an expired registration label.

73. In April 2001 he was fined and disqualified for driving whilst disqualified.

74. In July 2001 at Fairfield Local Court he was fined for a common assault.

75. In August 2001 he was convicted in his absence of an offence of common assault which was determined in due course.

76. There was a further common assault charged by way of a first instance warrant in November 2001, for which he was fined and put on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of two years. It appears that relates to the offence of which he was convicted in his absence.

77. In February 2003 he failed to comply with a good behaviour bond and a further bond pursuant to the same provision for two years was imposed.

78. In June 2003 in the District Court in Penrith his conviction for failure to comply was confirmed.

79. In February 2003 in the Local Court at Blacktown he suffered periodic detention for offences of assault occasioning actual bodily harm, common assault, and contravene apprehended violence order.

80. In June 2003 in the District Court in each case the conviction was confirmed but the periodic detention was replaced with other orders including a suspended sentence and bonds pursuant to s 9 Crimes (Sentencing Procedure) Act.

81. In March 2011 for intimidation he was fined and put on a further bond pursuant to s 9 Crimes (Sentencing Procedure) Act.

82. In September 1998 he was dealt with in the Children’s Court for common assault, which was dismissed with a caution, and for damage to property for which he was fined.

83. In March 2000 for a street offence he was fined.

84. In July 2000 for resisting an officer in the execution of his duty he was fined.

85. In August 2000 for driving under the influence of alcohol or a drug he was fined and disqualified

86. In February 2003 for contravening an apprehended violence order he was ordered to serve periodic detention but in the District Court that was replaced with a bond pursuant to s 9 Crimes (Sentencing Procedure) Act.

87. In November 2003 for damaging property he was fined and put on another s 9 bond.

88. In November 2018 the offences of contravening apprehended violence orders were dealt with. He also suffered imprisonment for using a carriage service and was fined and disqualified for driving dangerously.

89. The ultimate orders were made upon his appeals to the District Court; I referred to those earlier.

90. The balance of the matters are those further offences which, at least in the initial stages, led to conditional liberty which in due course was revoked and replaced with sentences of imprisonment which were modified in the District Court. Then we come to the escape lawful custody offences to which I earlier referred.

91. The custodial record does not include any custodial offences.

92. There is a sentence assessment report which, as is usual, does not extend to the detail that I shall discuss when dealing with the psychologist’s report. This document is consistent with what the psychologist says.

93. The author of the report had the opportunity to interview the offender, had contact with the offender’s sister and mother, and his employer, although that is not entirely consistent with the material that I have that the offender has his own business. There was also contact with St Vincent’s Correctional Health, and access to the police documents, and the Corrective Services records.

94. Prior to the incarceration he was living alone; he intends to reside with his sister in Glenmore Park when he is released.

95. He has three children, two of whom are with the victim of these offences. His family is said to be a pro-social influence upon him and they are supportive.

96. Prior to arrest he was self-employed and had been so for some 13 years running a business for the supply and installation of synthetic grass. This report tells me that the business closed whilst he is in custody, though there is material from his brother that tells me he is doing his best to maintain the continued operation of that enterprise.

97. When he is released he will be offered full time employment as a demolition supervisor by his brother in his brother’s business.

98. Under the heading “Dealing with factors related to the offending” the following appears: “A history of anti-social behaviour” is the sub-heading, beneath which the dot points are:

“The majority of Mr Broadhurst’s prior convictions relate to some form of violence and aggression.

The current offences indicate an escalation of his offending behaviour.”

“CSNSW records indicate that during this period of custody Mr Broadhurst has been charged with an assault and fail prescribed drug test.”

99. There is nothing on the custodial record before me regarding that; I will put that to one side.

100. Beneath the heading “Attitudes” there are three dot points, they are:

• “Mr Broadhurst was unable to display insight into his offending behaviour, maintaining that it never occurred.

• He disagreed with the police facts and stated that the victim has fabricated her statement.

• He failed to assume responsibility for his offending behaviour and appeared to focus on justifying and minimising each offence.”

101. He is attributed with a history of drug abuse commencing when he was aged 16, including periods of abstinence. He re-commenced his misuse in 2018 to cope with stress related to his growing business. He described himself as a functioning addict.

102. He said that at the time of the offending he was under the influence of ice or methylamphetamine, and this would cause him to behave in an erratic, irrational and impulsive manner. I would expect that is a fairly accurate proposition. Notwithstanding that admission he maintained that he did not behave in the manner described.

103. He denied being a violent or aggressive person despite the nature of the offences charged. He maintained that the victim fabricated the details that suggested that he threatened or assaulted her, but he conceded that the last 12 months of the relationship deteriorated to the point that they frequently argued.

104. At the time of this report he was receiving treatment and medication to address his depression and anxiety in custody and this was confirmed by St Vincent’s Correctional Health which represented that he has been compliant.

105. He attributed his declining mental health in the community to stress related to his business and the deteriorating relationship with the victim. He conceded his use of illicit substances to manage his mental health concerns and is attributed with willingness to engage with professional and psychological services.

106. He has, it is observed, a pattern of similar offending with a history of contravening apprehended violence orders. He failed to display any level of empathy or insight into the impact of his behaviour. His main concern throughout the interview was how he had been treated by the victim prior to and during the offences.

107. He said that at the time of the offences he was engaged with anti-social companions who encouraged him to re-commence his drug use, in respect of which he is willing to undertake intervention; he is willing to undertake community service.

108. His response to supervision in the past has been positive. He is assessed with a medium risk of re-offending.

109. The psychologist was not required for cross-examination and although I am urged to apply a level of circumspection with regard to the untested representations attributed to the offender, in the absence of him giving evidence either in the trial or in the sentencing proceedings, upon the application of Qutami v R [2001] NSWCCA 353 and the judgement of Smart AJ, and the more recent judgement of Wilson J in Imbornone v R [2017] NSWCCA 144, I find that I am in a position to accept the premises upon which the psychologist has come to the opinions developed upon clinical assessment on two occasions and psychometric testing. Moreover what is there contained is consistent with the behaviour upon which the offender engaged on this occasion and his past offending which does reveal someone who is in need of an extended period under supervision in the community; hence my finding of special circumstances.

110. He was assessed by the psychologist on 3 November 2020 at the Correctional Centre and then by audio/visual link on 17 November 2020. The documents to which the psychologist had access are there described, and he diagnosed amphetamine type substance use disorder of moderate severity and adjustments disorder with mixed anxiety and depressed mood.

111. He also displayed symptoms consistent with an impulse control disorder and a further psychiatric assessment was recommended. I would agree with that observation upon the material that I have before me.

112. To the psychologist he denied that he committed the offending behaviour, he maintained his innocence, and indicated his intent to consider lodging an appeal against the conviction.

113. He is 39 years of age. According to this report he is one of four children born to his parents. He reported having an older brother aged 43, who died in 2019 after surrendering to cancer. He has surviving siblings, twins, Joshua and Samantha, aged 33. He is obviously close to his siblings and was close, at least in his adult years, to his deceased brother.

114. His mother is aged 64, I note that she is in Court, as are his siblings, I think both of them, and I understand the anxiety they are experiencing seeing him in the dock facing a sentence for misconduct of which he has been found guilty. It is not overlooked by this Court that misconduct established against someone is not the subject of consequences to them alone but impacts upon family members who care for, and are concerned with, the welfare of their son and/or sibling.

115. His mother and the offender have a relatively good relationship and have had throughout their lives.

116. When he was aged 14 his parents separated because of his father’s ongoing alcohol misuse and violence. There were attempted reconciliations but his father persisted in his misuse of alcohol and this always resulted in violent behaviour.

117. He spent his childhood living with his mother and his father respectively at their homes. He was subject to violence at the hands of his father. When he was about 15 years old he suffered a broken nose. He had told his father to leave the family home and in response his father head-butted the offender. He attempted to develop a relationship with his father in the years that followed but violence continued.

118. He spoke of his attempts regularly to separate his parents in an effort to cease violence and no doubt in protection of his mother.

119. He began to act out at the age of 14. Neither of his parents wanted him to live with them at that stage, and indeed his mother told him to leave her home whereupon he went to live with his father until he was 16.

120. He has had three long term relationships. These have all ended for reasons he described to the psychologist set forth in the report; the most recent is the relationship with the victim in this matter.

121. He was expelled in year 6, and then attended High School until year 9. He was below average academically, he was disruptive and was regularly disciplined, he had difficulty learning, with comprehension, with concentration, and the overall academic aspect of school.

122. This notwithstanding he has been gainfully employed throughout his life it would appear. He was first employed at McDonald’s for a period of time and then spent two years in the business of vinyl carpet flooring. He began a TAFE apprenticeship. He did work as a random packer and as a truck driver. He has had 20 different jobs overall involved in vinyl carpet flooring and artificial turf installation.

123. He started his own business in 2013 as a sub-contractor for the installation of artificial turf. That is perhaps consistent with what was contained in the sentence assessment report which included contact with his employer which perhaps might have been more accurately described as the principal contractor.

124. He began using alcohol when he was aged 16. He stopped when about 21. He began smoking cannabis from about 16. He continued that until about the age of 35. He was then introduced to cocaine. He was spending up to $500 per day on that substance. He then resorted to crystal methylamphetamine, costing him about $2,000 per week. There are questions as to how he was able to fund that expense that come to mind but, as Mr Farrar said, he was a hard worker, which clearly he was on the material that I have, and it is at least possible that he had the wherewithal to fund his habit without engaging in other misconduct which in any event is not before me, or indicated by any other evidence.

125. He attended upon a medical practitioner in 2017 for symptoms of depression; he was prescribed medication for depression and for anxiety. He is currently prescribed an anti-psychotic medication and an anti-depressant. These are Seroquel and Mirtazapine.

126. He has completed a domestic violence related course. He is attributed with extreme worry and concern for his children. He has fear about their safety in light of some perception he has of his ex-partner’s two nephews.

127. The traumatic history includes the diagnosis of cancer suffered by his brother which took his life. He has a friend who was murdered in Doonside, the perpetrators using a hammer and a machete. It is believed that that arose from an outstanding drug debt. Later a friend of his was killed riding a push bike when struck by a motor vehicle. He carries some guilt as a result of that because his friend was urged to ride to the shops and buy the offender cigarettes.

128. He reports having been the victim of assaults in custody, and intimidation, and had property and food taken from him. He said that one inmate attempted to sexually assault him. I have no further information regarding that and I cannot, in the circumstances, make any finding with regard to those propositions without more.

129. His mental state examination revealed a tendency to engage in external attribution when reporting the circumstances surrounding his difficult life events and relationship breakdown. He attributed blame to his ex-partners and the legal system. He has a general lack of insight into how his own decisions contributed to his current situation placing him at continuing risk of re‑offending.

130. He underwent a series of tests which revealed severe levels of anxiety and depression; no doubt these are exacerbated by his present circumstances. It is said that his offending history suggests a difficulty to control his behaviour and impulse to act consistent with an impulse control disorder.

131. He was experiencing depression and post-traumatic stress disorder, according to records in a patient summary, from 4 and 5 November 2018. The records from the psychological service on 6 and 13 November 2018 indicate that he attended for psychological treatment that assisted him with his reintegration into society after the non-parole periods to which I have earlier referred.

132. The diagnosis I have already announced.

133. The offending history is described in the following terms at para 40:

“A review of Mr Broadhurst’s offending history is indicative of an individual who suffers significant behavioural inhibition deficiency, and tendency to engage in impulsive behaviours and potential decision making. The repeating of particular types of offending suggests he has poor emotion regulation when he becomes upset and/or angry and is likely to engage in acting out behaviours.

41. Acting out behaviours are consistent with impulsive control disorders: such as attention deficit/hyperactivity disorder and intermitted explosive disorder, where the individual when becoming angry impulsively and aggressively engages in aggressive and violent behaviour. Additionally, those behaviours are also consistent with poor relational bonding with parents, exposure to violence in the family home during childhood and adolescence, delinquent behaviours and aggression in adolescence, and the ingestion of alcohol and use of illicit drugs.

The assessment of Mr Broadhurst indicates a history that incorporates all of these co-varying factors, potentially placing him at greater vulnerability to continuing offending behaviour.”

134. A risk assessment was performed. He has a moderate risk for general offending and a high risk for violent behaviour and spousal assault. A treatment plan was suggested.

135. The results of the specific psychometric testing are thereafter described; they are consistent and there is no need for me to rehearse all of that. The passages I have quoted in my view fairly reflect the offender with which the Court is now concerned.

136. The first additional document is that provided by his mother. She refers to the absence of a strong father figure in his life and the absence of other male support figures along the way. She writes of him being a constant beacon of support for her and her other children, and of his own children adoring him for the wonderful father that he was to them before he went into custody.

137. She writes of her domestic violence relationship which ended when her husband walked out on her. She records the offender having been struck in the head by the father and knocked unconscious, and the event when he suffered the broken nose from being head-butted by his father.

138. She writes of his business that he now owns, the loss of his friend struck by the bus, the loss of his brother who suffered cancer.

139. She attributes him as having no limit in the support that the offender gave her and her deceased son through his battle with that disease. She refers to him having purchased his mother a car, and had it modified for his brother’s needs when being transported. He also provided a TV and other items to assist with his brother’s confinement when burdened by the illness prior to his death.

140. She writes in the most glowing terms of her son, as one would expect. She speaks of his attitude as a father, loving and doting upon his children, and the care he provides for them when they are with him.

141. She speaks of his mental health deterioration since he has been in custody.

142. I should add, and I am reminded by Mr Farrar, of the limitations that have been imposed upon inmates by reason of the Covid-19 virus and the lost opportunity to have face to face visits in custody, which he has no doubt suffered, although I know that contact is available by way of telephone and by way of audio/visual link with limitations attaching to those arrangements.

143. I am also aware that Corrective Services have been notoriously successful in managing the risk of infection from this disease and that the arrangements that were in place have been recently modified to allow at least some contact person to person. Whether or not that has been extended to this offender I do not know.

144. The next document is from his sister Samantha. She writes in similar terms to his mother, and so too his brother, who provides his own document, including the extent to which he is endeavouring to keep afloat the business the offender started. It is not necessary to rehearse all that they have said; suffice to say that they clearly love the offender and are concerned for his welfare, and anxious to see him returned to the community at the earliest possible moment.

145. There is some additional material provided to me, first from the co‑ordinator of Chaplains at Parklea Correctional Centre speaking of the programs he teaches and which have been completed by the offender. These are the Prisoner’s Journey and the Salvation Army’s Positive Lifestyle Program. I accept that he has undertaken and has been successful in the achieving the benefits available through those programs.

146. The offender also provided a document. My observation I would make first of all is this handwriting is particularly neat, almost as if it was typed. It has not been typed, but he writes of the past 19 months how he has learnt so much about himself and his behaviour, and how his outlook to life was very wrong. He writes of feeling very saddened by everything that has happened and how his custodial circumstances have had a huge impact upon him and upon his loved ones.

147. There is ongoing contact with the victim consistent with what he has here written, and consistent with what she has provided in a further document to which I am about to come. He speaks of the challenges his children are having at school, how they are missing him, and grieving for him. He writes of the impact upon his mother and his siblings.

148. He writes of the opportunity he wishes to take to enhance the arrangements whereby he can co-parent with the victim, his willingness to undertake programs, to do whatever is necessary to improve himself in that regard and in other ways. I have no doubt that he has expressed a heartfelt emotion regarding his circumstances and the challenges that all are facing because of the misconduct upon which he is said to have engaged.

149. The qualification though is that there is no clear and unequivocal recognition of the wrongdoing of which he has been found guilty, and his concern and regret about circumstances which pertain does not extend so far as to demonstrate insight to the extent that he has accepted his responsibility for the misconduct which has led to these charges and his convictions.

150. His former partner, the victim, provides a document and it is appropriate that I read the entirety of this, I believe. It is addressed to this Court.

“I would like to submit my foundation of submission, for a request of leniency for Garrath’s District sentencing in goodwill for the children’s benefit to be able to have a relationship with their father.

Garrath has been in custody for well over a year, resulting in absence of the children having a father and foundation of a family environment. In the instance Garrath has done programs to help him rehabilitate and form better judgment on his life choices, he deserves a chance to show his children he is a good person. My son would benefit from his father being around, as he navigates through life referring to gaol as a normalised term, and this isn’t how I want my son progressing through life.

After consistent requests from the children, I believe the children should have the opportunity to have a father figure in their lives. I am not naïve to the efforts of what a District Court is here to protect, they believe Garrath made some extremely stupid careless choices, but in turn everyone deserves a chance to prove their changes. Being in custody for extensive periods, does no good to the children’s upbringing or Garrath chance to sustain being a father or providing stability for his children.

When court proceedings are finished, and we all go home to our normal lives and families, this is a paramount request from the children regularly to see their father for which I can now say I am comfortable requesting this from the courts.

This request ultimately, increases the positive impact to the kids’ childhood and also will help with rehabilitation for Garrath.

Thank you for hearing my request.”

Consideration

151. The Court is subject to the law. Notwithstanding what I accept to be a heartfelt plea on behalf of the offender I am obliged to apply the principles that are relevant to the assessment of punishment in a case such as this, which involve offending in a domestic setting, in the home of the victim, when her children were present, albeit not immediately proximate to the misconduct charged.

152. The wishes of the victim, and indeed the offender’s family, are not overlooked but they must be considered together with all of the material that is before me, and upon the application of the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999, which are to ensure that the offender is adequately punished for the offending; to prevent crime by deterring the offender, and other persons, from committing similar offences; to protect the community from the offender; to promote rehabilitation; to make him accountable; to denounce his conduct and to recognise the harm that he has occasioned.

153. I accept the opinions offered by the psychologist and perhaps with adequate management he will in due course be able to control his impulses and not surrender to anger such as he did on this occasion. He must suffer imprisonment for the misconduct of which he has been found guilty.

154. All of these purposes of sentencing are engaged in this case. I am mindful of the need to structure a sentence that will promote his rehabilitation and hence my finding of special circumstances, but there must be punishment referrable to this misconduct in an appropriate non-parole period.

Sentence

155. Accordingly, for each of these offences, of aggravated robbery using corporal violence, the aggravated break and enter, and intimidation, the offender is convicted.

156. I indicate the following sentences:

1. For the aggravated robbery involving corporate violence a sentence of 3 years and 3 months imprisonment.

2. For the aggravated break and enter I specify a head sentence of 3 years and 3 months imprisonment with a non-parole period of 1 year and 9 months, which must be specified because it is a standard non-parole period offence.

3. For the offence of intimidation I specify a sentence of 1 year.

157. There will be an aggregate sentence with a significant degree of concurrence that will commence on 1 January 2020. I specify a non-parole period of 1 year and 9 months, which will expire on 30 September 2021. I specify an overall head sentence of 4 years and 3 months which will expire on 31 March 2024.

158. I recommend that the offender be released to parole at the expiration of the non-parole period which will be supervised in accordance with the regulations and the legislation under which they are made to address his particular needs as they might be found at that time.

159. For sequence H numbers 73827581: sequence 5 - intimidate, withdrawn and dismissed; sequence 6, use carriage services, withdrawn and dismissed; sequence 9, knowingly contravene AVO, convicted s 10A.

160. The exhibits can remain on file for such period as the parties might require for their purposes.

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Decision last updated: 18 February 2021