R v Brown

[2020] NSWDC 925

District Court

New South Wales

Medium Neutral Citation:

R v Brown [2020] NSWDC 925

Hearing dates:

04 May 2020

Date of orders:

13 May 2020

Decision date:

13 May 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

For the offence of remain on land with intent to intimidate I impose a Community Corrections Order for a period for 2 years 6 months

For the breach of the Community Corrections Order, that is revoked and in lieu thereof I impose a Community Corrections Order for a period of 18 months

Catchwords:

CRIME — Property offences — Remain on land with intent to commit indictable offence

SENTENCING — Penalties — Good behaviour bond

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure (Amendment) Sentencing Options) Act 2017

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

R v Qutami [2001] NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Pamela Helen Brown (Offender)

Representation:

Sarah Tait (Crown)
Stuart Bouveng (Counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Hadden Kemp Solicitors (solicitors for the Offender)

File Number(s):

2019/00202998

REVISED EX TEMPORE JudgEment

SENTENCE

INTRODUCTION

1. These are sentence proceedings for Pamela Brown who appeared before me on 24 March 2020 when I was presiding in the sittings for the District Court of New South Wales at Moree. Because of the COVID-19 concerns, the proceedings were conducted remotely from the Sydney District Court with the parties in the various matters appearing remotely at the courthouse in Moree.

THE OFFENCE

2. On that occasion, Ms Brown pleaded guilty to one offence in the following terms:

That she on 5 March 2019 at Moree in the State of New South Wales did remain on land occupied in connection with a building, namely, X/X-X XXXX Street, Moree, with intent to commit an indictable offence in the said building, namely, intimidate KR, DR and DB.

3. The offence is contrary to s 114(1)(d) Crimes Act 1900. The maximum penalty specified for the offence is imprisonment for seven years. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

THE PLEA

4. The plea of guilty was entered when the trial was anticipated to commence in the sittings over which I was presiding. The plea of guilty attracts a discount for the utility it provides to be applied to a sentence of imprisonment were I to impose one today. Counsel for the offender submitted that a discount of 10% would be appropriate in the circumstances, but as the Crown correctly notes, these arrangements are now governed by legislation providing what is known as the EAGP arrangements, and upon the sequence of negotiations that led to the plea, the discount to which the offender would be entitled is one of 5%: s 25D(2)(c) Crimes (Sentencing Procedure) Act 1999. I am not intending to incarcerate the offender today and therefore the consideration of a discount for utility is at this point otiose. However, should the community corrections order I am about to impose be breached and it is necessary to impose a sentence of imprisonment, it will then be appropriate to bring to account the discount to which I have referred.

THE FACTS

5. The offender was initially charged with a more serious offence because of the conduct upon which those with her engaged. She is not to be held to account because of the more serious behaviour. I simply provide this to set forth the context in which her misconduct is to be assessed.

6. The complainants are DR, aged 21 at the time of the offence, and KR, aged 43. They are mother and son. On the morning of Tuesday 5 March 2019 the complainants were in KR’s home at the address X/X-X XXXX Street, Moree. Also present were DB, KR’s boyfriend, aged 35 at the time, and JO, a friend of DR, who was aged 26. DR and JO were in the lounge room, while KR and DB were in a bedroom at the end of a hallway.

7. At about 4.30am that day, DR and JO heard banging on the front door and a voice or voices calling out for DB, referring to him by the name “Nut”. JO went to the bedroom and told KR and DB that there was someone at the front door. He then went into DR’s bedroom. DR opened the wooden door and saw Daryl Smith and Kevin Smith, referred hereinafter as the Smith brothers. He also saw this offender and two unknown men. They were standing at the door. The screen door was not locked, but WAS closed.

8. The Smith brothers told DR to open the door and asked, “Where is he?” DR did not know of whom they were speaking. Daryl Smith said, “You know who.” DR turned to go and wake his mother and DB and as he did he heard the screen door open. He struggled for control of the door, but eventually the Smith brothers and the other unknown males overpowered him, forced the door open and entered. DR demanded that they leave. Daryl Smith had a pocket knife in his hand. It was about four to five centimetres long. Kevin Smith was holding a blue filleting knife with a thin blade about 20cm to 30cm long. Daryl Smith lunged at DR with the pocket knife and stabbed it into the middle of his chest. He withdrew the knife, leaving a two centimetre puncture wound in the middle of the victim’s chest. The knife had punctured his lung and caused fluid to enter his heart.

9. KR heard noises from the living room and went out to the lounge room to investigate and saw both Smith brothers standing in the lounge room. Daryl Smith said to her, “I will kill you.”

10. The offender before me was outside the flat and yelling encouragement and support to the others, and it is this conduct upon which the present charge is brought.

11. Daryl Smith’s attention was directed toward KR and DR. Daryl Smith said to KR words to the effect of, Aunt, you know I can bash you here, and, “What happened to DR can happen to you.” This carries the connotation that there was some aspect of revenge involved in all of this.

12. As Daryl Smith interrogated DR and KR and DB, the two unknown males went into the bedroom and the kitchen, conducting a search of about ten to 15 minutes’ duration. At this time, KR was sitting beside her son. She saw that he was pale. He was holding a pillow case over his chest. Her son told her that he had been stabbed and to remain silent. He kept repeating, “Mum, am I going to die Mum?”

13. JO, who had remained in DR’s bedroom the entire time, heard the commotion at the front door. He armed himself with a piece of wood that he found in the room and stepped into the hallway. He was able to send a text message to a contact to have them contact the police. JO stepped into the lounge room when Daryl Smith demanded to know if he, JO, had drugs on his person. He said that he did not. He handed Daryl Smith his wallet which was empty. Daryl Smith had a knife in his hand and showed it to JO and said to him that he was not afraid to use it. After searching the complainant’s bedroom, the Smith brothers and their accomplices left uttering the words, “Don’t ring the coppers, Bra, we know where you live.”

14. By this time DR was experiencing difficulty breathing, there was blood in his mouth, and he was not in pain. He began walking to the Moree Hospital with his mother. Along the way a friend picked them up and took them there. By the time he reached the hospital he was experiencing pain in the chest from the wound. He was diagnosed with a two centimetre penetrating wound to the chest. The knife had penetrated his pleural chest cavity causing a haemothorax and pneumothorax or, in other words, pooling of air and blood in the chest cavity. The wound was sutured. A tube was inserted to drain air and blood. 800 mls of blood were initially drained in this method. He was airlifted to John Hunter Hospital the following day where he remained for nine days.

15. There is reference in the facts to what he told the police. So, too, the representations attributed to JO and to the statements made by KR, DB and JO on 5 March 2019.

16. KR and DB provided the police with a wooden‑handled pocket knife that was allegedly used in the stabbing. There is a photograph of the victim of the stabbing, showing the wound to his chest; he is depicted on his back in bed.

17. Pamela Brown was interviewed on 6 March 2019; she voluntarily participated in a record of interview. The following is drawn from that document.

a) She had just been walking past when she saw the co-accused had attended the victims’ home. She had knowledge that they were there to obtain prohibited drugs from the victims.

b) She denied coming onto the property. She said she remained on the footpath.

c) She had just had a couple of alcoholic drinks.

d) She saw KR and DB open the door and let the co-accused into the house.

e) She denied seeing what occurred inside the house.

f) She move further up the road and spoke to a few other people when the co-accused left the property. She heard loud voices coming from inside the house.

g) She cannot recall the names of the people she was speaking to outside because she was intoxicated. She had consumed premixed cans of rum and coke.

h) Her memory of the time of the offence was affected by alcohol.

i) She recalled speaking to JO while he was standing outside the front door.

j) She denied seeing any of the co-accused in possession of knives.

18. She was released but was ultimately charged on 23 July 2019 and served with a court attendance notice.

SENTENCES IMPOSED UPON A CO-OFFENDER

19. Daryl Smith, on 28 November 2019, was sentenced in the District Court at Moree for the wounding with intent to cause grievous bodily harm. He suffered a sentence of six years’ imprisonment with a non-parole period of four years and six months. The third and fourth males remain unidentified.

THE EXTENT OF THE OFFENDER’S ROLE

20. As I said, the misconduct upon which the offender is to be sentenced is limited to her presence outside the flat yelling encouragement and support to the co‑accused who, upon her admission to the police, were there to acquire drugs. The terms that she used in the offer of encouragement are not included in the facts and the nature of the encouragement she was offering is not particularised, but as I understand the document before me, it was within the context of the invasion described in the facts as they relate to the co-offenders and the threats that were uttered in the course of that invasion.

21. The representations in the interview, though, that she denied coming onto the property, how she came to be there, the effect of the alcohol that she said she had consumed, all must be unreliable representations in light of her plea of guilty to the offence and the statement of facts to which she has pleaded guilty for the purposes of the determination of sentence.

THE OFFENDER

22. She was born in 1987 and is now 33 years of age. She has a relatively extensive record of antecedents. In December 2017 she was charged with driving whilst disqualified. She was imprisoned, but in the District Court that was varied to a suspended sentence. In August 2008 she was charged with common assault, two counts, and affray which, in due course, resulted in bonds pursuant to s 10 Crimes (Sentencing Procedure) Act 1999, each of 12 months’ duration. In December 2014, for driving with a child unrestrained and driving having never held a licence, she was given a bond in each case for 12 months pursuant to the same provision. In February 2015 for driving dangerously she was convicted and given a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 12 months with a disqualification period of 12 months. For a police pursuit charge at the same time she was given a bond pursuant to the same provision for the same period, with a disqualification period of 12 months. In June 2017 for driving without ever having held a licence, she was ordered to perform community service of 50 hours, with a disqualification of three years. That took her through to 2020, relevant because of the breach proceedings with which I am to deal today.

23. In December 2017, for driving having never held a licence, she was called up for breach of the bond and ordered to serve three months’ imprisonment. In the District Court that was converted into a suspended sentence.

24. In June 2017, for driving having never held a licence she was ordered to perform 100 hours community service, with another period of disqualification of three years. She was called up for breaching that in December 2017 and sentenced to three months’ imprisonment, but in the District Court that was varied to a suspended sentence.

25. In July 2017, for driving whilst disqualified after being convicted in her absence, she was sentenced to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act with a disqualification period of two years. That was imposed in October 2017.

26. In August 2019, for driving whilst disqualified she was convicted in her absence and in October 2019 she was imprisoned for four months. In the District Court that was varied to a community corrections order for a period of 18 months.

27. She is a persistent offender, particularly with driving offences.

28. She did not give evidence before me and, thus, I am called upon to assess the veracity of representations attributed to her in the sentencing assessment report, without the benefit of having heard her make the representations in Court under oath or affirmation and face cross-examination and, thus, the caution suggested by Smart AJ in R v Qutami [2001] NSWCCA 353 is apposite here.

29. The sentence assessment report was written on 30 April 2020. She lives with her young baby and partner in Moree. She has seven other children, who are distributed between members of her extended family outside of Moree where they are provided with care. She has daily contact with her children and her family members and she has their pledge of support.

30. The family members said that they believe she is attempting to get her life in order and that she has set herself goals to remain positive, to one day have her children returned to her care. She was not at the time of the report involved in any prosocial activities, but she would like to return to sporting activities in the future.

31. She completed her education to year 10, and has no employment history. She acknowledged her poor criminal history of driving offences and the common assault convictions in 2008.

32. Beneath the heading Attitude the following appears against:

• Ms Brown accepts responsibility that she was at the scene of the offence, whilst providing her own version of events, citing she was forced to be there.

• Ms Brown verbalised that antisocial behaviour is “prohibited” and “not on” and she regrets being on the street at the time.

• Ms Brown requested a referral to a generalised counsellor during the preparation of this report; however the counsellor has been unable to establish contact with her.

33. The implication that she was in some circumstance of coercion I reject. It is not a matter upon which reliance has been placed in the presentation of this matter.

34. She has been a user of prohibited drugs since 2017 as a coping mechanism. She lost her grandmother who was a long term victim of domestic violence. She said she had been using drugs and drinking alcohol on the night of the offence and spoke of her life as a “blur” at that time. She acknowledges that she would not be in her present predicament if she had not been using prohibited drugs, but since then she has been abstinent, confirmed by her partner and her family.

35. Beneath the heading Insight Into Impact of Offending, the report contains the following:

Ms Brown stated she did not have feelings towards the victims at the time as she feared for her own safety, and again reported that she was forced to be at the location. She did state, however, that she was “scared” for the female victim at the time.

36. Once again, there is no reliance placed upon the representations of coercion or fear for her own safety and I do not bring that representation to account.

37. She appeared to the author of the report to be motivated to change her behaviour and expressed willingness to undertake supervision as required. She did not want to be assessed for community service because of child care issues and did not want to set herself up to fail. Her last period of supervision began in November 2019 after a community corrections order was imposed, but supervision was suspended due to her low risk rating and compliance with conditions. She is at a medium risk of re-offending.

38. If there is a supervised order, Community Corrections will supervise her at tier 1, requiring her to report to Community Corrections every two weeks. During the present pandemic, service delivery may be reduced or altered, thereby allowing her to report by telephone. No conditions other than supervision are thought to be necessary.

SUBMISSIONS

39. The submissions made on her behalf by counsel reduced to writing are succinct but on point. There is reference to the s 9 good behaviour bond breached by reason of this misconduct and I shall, with her consent, deal with that breach in the determination of this matter today.

40. I am reminded of the plea of guilty after negotiations; I have already referred to the 10% discount that was advanced by Mr Bouveng of counsel. The ultimate submission is that the very limited role of the offender, as set forth in the facts, with her limited criminal history and her current circumstances, requires something other than a custodial sentence. I agree that the combination of factors is an indication that a sentence of imprisonment should not be imposed, but looking at the facts alone, without bringing to account the personal circumstances the offender has before her, I am of the view that her involvement in this event, without more, does have her over the line so‑called in s 5 Crimes (Sentencing Procedure) Act 1999. However, drawing upon the subjective material to which the sentence assessment report refers, I accept that the course to be taken in this case is by way of a community corrections order, and that is what I intend to do. Of course, if the order is breached, those subjective matters, limited though they might be, might well dissipate in their effect and I will be back to consider the option of imprisonment.

BREACH OF CONDITIONAL LIBERTY

41. Turning now to the s 9 breach: amendments to the Crimes (Sentencing Procedure) Act have now displaced what was s 98 Crimes (Sentencing Procedure) Act 1999 which was extant at the time the bond was entered. The Act was amended by the Crimes (Sentencing Procedure (Amendment) Sentencing Options) Act 2017 with the inclusion of cl 74 in sch 2, Savings, Transition and Other Provisions. This provides that the clause applies to a good behaviour bond entered under s 9 of the Act before substitution by way of the amending act.

42. The s 9 bond is now taken to be a community corrections order, made under s 8 of the Act in its current form, and upon conversion, the standard conditions of a community corrections order apply. There are procedures for breaches found in s 107C Crimes (Administration of Sentences) Act 1999 and s 107D of that Act, which empower this Court, with the consent of the offender, to deal with a breach. I have that consent and I propose now to address that question.

43. I have already rehearsed the driving history accumulated by the offender. When subject to disqualification, she committed another offence of driving whilst disqualified at 2.30pm on 15 June 2017 when she drove a motor vehicle in Glendale. She was stopped for the purpose of a random breath test. She acknowledged to the police that she did not have a licence. She produced a photo card in her name and then, upon enquiries made by way of the vehicle computer, it was confirmed that she was a disqualified driver from 13 June 2017. She was issued with a field court attendance notice.

44. The breach papers include a bail report reflecting the antecedent report which I have already summarised.

41. There is also the traffic record from Transport New South Wales. Her first offence was in December 2014, driving with the unrestrained passenger under the age of 16 years, followed by the unlicenced driving offence on the same day, both of which attracted the benefit of s 10 Crimes (Sentencing Procedure) Act 1999 as it was. Then in November 2014 she drove while unlicenced, was convicted and fined. In November 2014 for driving dangerously she was convicted, put on a bond for a year and disqualified. On the same date for a police pursuit she was disqualified for a year. Then in May 2017, for driving without ever having held a licence, she was disqualified for three years and ordered to perform community service of 100 hours. That offence followed one in March for driving never having held a licence, for which she was disqualified for three years and ordered to perform 50 hours’ community service. In June 2017 she was declared an habitual offender.

42. There is a series of pre-sentence reports included in this bundle. The first I have is on 30 August 2017. This lists the occasions when the officers wrote to her for the preparation of a report, however she failed to attend. There was a home visit in August 2017, but no contact made. A business card was left. Notwithstanding these efforts no contact was made and no report could be prepared as of 30 August 2017. On 28 September 2017 a further report was provided, noting that the service was unable to provide a pre-sentence report as requested. The efforts made in that regard are summarised, and in light of her failure to respond, the report concludes: “Ms Brown has been assessed as unsuitable for any community‑based sanctions.”

43. A sentence assessment report was written on 6 August 2019, recording again that she could not be assessed for the purposes of a community‑based sentencing option because she failed to present for interview. The efforts to contact her and engage with her are summarised. She was given instructions to facilitate the process, but ultimately failed to attend.

44. That history must now be assessed in light of the more recent response for the purposes of these proceedings, perhaps reflecting the offender’s change in attitude and that she is now focused upon redirecting her path. One hopes so because, as I made clear at the beginning of the hearing today when I addressed her directly, if she fails to stay out of trouble over the next two and a half years, she will be back before me to answer.

THE SENTENCE

49. In respect of the offence upon which sentence is to be imposed of remaining on land with intent to intimidate, the offender is convicted. I shall impose a community corrections order for a period of 2 and a half years from today. Pursuant to s 87 Crimes (Sentencing Procedure) Act 1999, the community corrections order is subject to the standard conditions of not committing any offence and that she must appear before Court if called upon to do so at any time during the term of the community corrections order.

50. I am going to add that she abstain from the use of prohibited drugs as an additional condition, and she is to be supervised by the Community Corrections Service, and to that end, upon the conclusion of the proceedings today, she is to make contact by telephone with the Community Corrections Office from which the report emanated, and that is at Moree.

51. When she leaves the courthouse at Moree today, after signing the paperwork, she is to go directly to the Moree Community Corrections Office, and whether it is by telephone or face‑to‑face, depending upon the arrangements to address the concerns arising from the pandemic, the supervision is to be put in place.

52. The additional conditions to which I have referred are pursuant to s 89(2)(d) Crimes (Sentencing Procedure) Act 1999, the abstention requirement and s 89(2)(g) the supervision requirement.

53. In relation to the breach of what is now the community corrections order imposed for the drive whilst disqualified, the community corrections order to which she was subject by force of the amending legislation is revoked and in lieu thereof she is to submit to a further community corrections order for a period of 18 months from today. The conditions attaching to this order are that she must not commit any offence and must appear before the Court if called upon to do so, and once again I will impose the abstention condition and the supervision condition specified respectively in s 89(2)(d) and s 89(2)(g) of the Act. There is no disqualification period required in addition to that imposed previously.

54. Upon the application of the Crown pursuant to s 21 Criminal Procedure Act 1986 the indictment is amended to specify DR as the victim in place of KR, DR and DB.

55. The offender was addressed to inform her of the next steps for the implementation of the orders.

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Decision last updated: 25 October 2021