R v Cay
[2018] QDC 104
•18 April 2018
DISTRICT COURT OF QUEENSLAND
CITATION:
R v CAY [2018] QDC 104
PARTIES:
THE QUEEN
v
CAY
FILE NO/S:
9/2018
DIVISION:
PROCEEDING:
Sentence
ORIGINATING COURT:
District Court
DELIVERED ON:
18 April 2018
DELIVERED AT:
Charleville
HEARING DATE:
18 April 2018
JUDGE:
Dearden DCJ
ORDER:
All concurrent:
1. Each of counts 1 and 2 (threatening violence): convicted and sentenced to 12 months’ imprisonment;
2. Each of charges 1, 5 and 7 (public nuisance): convicted and sentenced to 1 month imprisonment;
3. Charge 2 (common assault – domestic violence offence): convicted and sentenced to 2 months’ imprisonment;
4. Charge 3 (attempted enter premises with intent): convicted and sentenced to 6 months’ imprisonment;
5. Charge 4 (wilful damage – domestic violence offence): convicted and sentenced to 2 months’ imprisonment;
6. Charge 6 (assault or obstruct police officer): convicted and sentenced to 1 month imprisonment
CATCHWORDS:
CRIMINAL LAW – SENTENCE – where the defendant pleads guilty to two counts of threatening violence, three charges of public nuisance, one charge of attempted enter premises with intent, one charge of wilful damage and one charge of assault and obstruct police officer – where count 1 on the indictment is a domestic violence offence – where charge 4 is a domestic violence offence – where time spent in pre-sentence custody is declared – where an immediate parole release date is ordered
LEGISLATION:
CASES:
COUNSEL:
R. Swanwick for the Director of Public Prosecutions
P. Hardcastle for the defendant
SOLICITORS:
Office of the Director of Public Prosecutions
Frank Jongkind and Co
HIS HONOUR: Stand up, please. Before I pass sentence, is there anything that you want to say about any aspect of this?
DEFENDANT: Your Honour, I just want to deeply apologise for any inconvenience and to those abused. I am a changed person now. I was bad on drugs and – narcotics, and alcohol does not agree with me, as you can see in my past.
HIS HONOUR: Yes.
DEFENDANT: And it took these last three months to realise, with a straight head – I had previously been on narcotics for 10 years, so the last three months, I have been able to see where I have gone wrong, what I was doing wrong and where to go in the future. But yeah, if it was not for that, I probably would be somewhere bad.
HIS HONOUR: Yes.
DEFENDANT: Thank you.
HIS HONOUR: Have you ever previously completed a relapse prevention plan?
DEFENDANT: No, your Honour, not till my jail time.
HIS HONOUR: You did the DO-IT program?
DEFENDANT: Yeah. It was very good, helpful, made me see the insides of stuff that I had never seen before.
HIS HONOUR: Yes.
DEFENDANT: I started going to church, seeing our Lord, and he looked down on me today. So yeah, it has really changed my life.
HIS HONOUR: I mean, I was impressed because it is obviously in your own writing, it is – it does seem to show some significant insight. Now, a number of fundamental things. Do you recognise that, having been diagnosed as a child with ADHD, you may well still be dealing with adult ADHD now? You understand that?
DEFENDANT: Yeah. When I turned 18, I was – I did not go for further medical trials on myself, so it was from them on that I sort of went down the wrong path.
HIS HONOUR: Yes. So one of the things, if you shift to Oakey, as Mr Hardcastle says you are looking at, you are obviously much closer to Toowoomba ‑ ‑ ‑
DEFENDANT: Yep.
HIS HONOUR: ‑ ‑ ‑ as well as to Brisbane, for medical assistance.
DEFENDANT: Yep.
HIS HONOUR: So that is one very important thing. Secondly, you have got a relapse prevention plan. You understand that you are going to need to lock into assistance and treatment ‑ ‑ ‑
DEFENDANT: Yes, your Honour.
HIS HONOUR: ‑ ‑ ‑ when you get out. Thirdly, and, it seems to me, very importantly, you have got a son who has got his own problems.
DEFENDANT: Yes, your Honour.
HIS HONOUR: If you continue drinking and using illegal drugs, you will take a son who has got problems that are that big, and you will make them that big.
DEFENDANT: Yeah.
HIS HONOUR: That is what you will do.
DEFENDANT: It is not me that it is affecting; it is them.
HIS HONOUR: Yes. So you have got to decide what is important, and if your partner and your children are the most important things in your life, then you will do something about changing the way you live your life.
DEFENDANT: Yep.
HIS HONOUR: Good for you, of course, it will help you get out of jail, but more importantly, it seems to me, it is about what you are going to do that is going to be good for those who care about you and love you and support you.
DEFENDANT: What I do in the future will lead the way to their future.
HIS HONOUR: Yes. Now, whatever problems there have been in the past within your family, it is obvious that – from the material I have seen from your brothers, that despite the fact that you have behaved absolutely appallingly to them and to your mum ‑ ‑ ‑
DEFENDANT: Yes, I have.
HIS HONOUR: ‑ ‑ ‑ they still care enough about you that they are prepared to give you another chance as well, and that is pretty extraordinary, as I am sure you have worked out.
DEFENDANT: Yeah. Yeah.
HIS HONOUR: So in many ways, it seems to me that you doing a bit of time has actually been good for everybody.
DEFENDANT: No, I know.
HIS HONOUR: It has been good for you, because it gets you off the grog and off ‑ ‑ ‑
DEFENDANT: Yep.
HIS HONOUR: ‑ ‑ ‑ the illegal drugs. It is good for your family, because they get a break from you, and that is not a bad thing, and it seems to me, this morning, that you have got a clear head.
DEFENDANT: Yep.
HIS HONOUR: And looking at what happened on the 30th of December and again on the 2nd of January, and what you heard the prosecutor read out about some of your previous conduct ‑ ‑ ‑
DEFENDANT: It was appalling.
HIS HONOUR: Absolutely. Could not have put it better myself.
DEFENDANT: [indistinct]
HIS HONOUR: And if you are going to live in the community, you have got to be prepared to live a life in which you are respectful of others, because that is the only way you are going to be respected by others.
DEFENDANT: Respect others the way you want to be respected.
HIS HONOUR: Precisely, and if you have started reading the Bible, you will understand that all of that is there.
DEFENDANT: Yeah, it is.
HIS HONOUR: Treat others as you want them to treat you. And at the end of the day, we have all got to live in this community, whether it be Charleville or Oakey or anywhere else. Most of us want to live in a loving relationship, where we can respect our partner, love our children, cherish and nurture our children, to have at least respectful relationships with the rest of our family. And, you know, when you turn up and say the deeply hurtful and deeply unpleasant things that you have been saying in the past, of course, you are not only putting people physically at risk, because you made lots of threats and actually assaulted people, but you are damaging the relationship between you. And at the end of the day, blood is thicker than water. They are still family. You may have treated them appallingly and behaved appalling, but they are still your family, and ‑ ‑ ‑
DEFENDANT: Yep.
HIS HONOUR: In your case, they have been able to see beyond your behaviour – which, as you have rightly described, is appalling – and see what are obviously the positive things about you. That you have been able to hold down good jobs at the abattoir here in town. You have got your eye on a job in – hopefully getting a job in Oakey.
DEFENDANT: Yep.
HIS HONOUR: As you well know, that is hard work that requires you to be in good health. And it is easy to be in good health in your twenties and your thirties, if you look after yourself, but it gets harder and harder as you get into your forties and your fifties and your sixties, and that is all about looking after your own health, your physical health, your mental health, dealing with substance abuse. And unless you can do all of those things, you will end up back in the clink, like you are at the moment, and I am sure you have looked around and seen plenty of guys in their thirty to forties and fifties, particularly ‑ ‑ ‑
DEFENDANT: Yep.
HIS HONOUR: ‑ ‑ ‑ who are in that cycle. You know, they get out, things go all right for a time, they get on the turps, go and do some really stupid things, and then they are back again, or they get on the drugs and they are back again. Now, if you want to be one of those guys, well, that is really easy. You have just got to keep getting out, doing stupid things and going back in.
DEFENDANT: I did not realise I was in that cycle until I went in and ‑ ‑ ‑
HIS HONOUR: This time.
DEFENDANT: ‑ ‑ ‑ thought about it and ‑ ‑ ‑
HIS HONOUR: Yes.
DEFENDANT: ‑ ‑ ‑ seen it.
HIS HONOUR: Okay. So if you have seen that, then, quite frankly, a bit of time inside has done you the world of good. It certainly got you preparing a relapse prevention plan, which I am very pleased to see ‑ ‑ ‑
DEFENDANT: Yep.
HIS HONOUR: ‑ ‑ ‑ undertaking the DO-IT program as part of that, and getting some insight into what you have been doing that is stuffing up your life ‑ ‑ ‑
DEFENDANT: Yep.
HIS HONOUR: ‑ ‑ ‑ and, of course, stuffing up the life of those who care about you, who love you and support you, despite what you have done. Now, really, you want people to love you because of what you have done, because of the good things you do ‑ ‑ ‑
DEFENDANT: Not the bad.
HIS HONOUR: ‑ ‑ ‑ not love you despite the appalling things you do.
DEFENDANT: Yep.
HIS HONOUR: Pretty basic.
DEFENDANT: I have actually created a bit of a support network on the outside.
HIS HONOUR: Terrific. And you understand that when things start to get a bit wonky, things start to get a bit shaky, there are people you can talk to, and there are resources you can access.
DEFENDANT: Yeah. In the past, I just preferred drugs, and thought that was the way to do it ‑ ‑ ‑
HIS HONOUR: Yes.
DEFENDANT: ‑ ‑ ‑ which it is not.
HIS HONOUR: Okay. All of that sounds positive to me. All of that sounds, to me, like you have done something to, firstly, identify how you have stuffed up in the past, and secondly, identify how you are going to, hopefully, not stuff up in the future.
DEFENDANT: Yep.
HIS HONOUR: Now, I have been around long enough to know that that is not easy, and unfortunately, not everyone gets it right the first time they come to that realisation, but I certainly hope you do. Bear with me while I say a few things, which I am obliged to do before I sentence you, and then I will tell you what I am going to do.
You have pleaded guilty for two counts of threatening violence in the night, the first of which is a domestic violence offence, both occurring on the 30th of December 2017. Then, in respect of various other matters on that night, as well as a matter that occurred a couple of days later, three commit public nuisances, the last of those occurred at the Charleville Hospital on the 2nd of January 2018; one common assault, which is the 30th of December; one attempt to enter premises with intent; one wilful damage, which is a domestic violence offence, as well as that common assault; and one assault or obstruct a police officer. It was actually an obstruct by making their life more difficult when they were arresting you.
The facts have been outlined by the prosecutor. They are, as you have indicated, quite appalling conduct in the way that you carried on, firstly, that night, in abusing your mum down at the club. Then, of course, going to the family home, punching your brother, attempting to get in and buckling the screen door, threatening to kill everybody, overturning the table outside, threatening violence – again, in appalling language, which I will not repeat, because it is pretty distressing. And then threatening violence against the police – again, in appalling language; resisting arrest – or resisting the police, I should say, when you were put in the police car; and then that behaviour a couple of days later, at breakfast, at the hospital, which really would have been very distressing to everyone, not only the police officer but the hospital staff.
You have done 109 days, which is almost four months, and that, quite frankly, has done you the world of good. The prosecutor and your barrister, Mr Hardcastle, both agree that the appropriate effective head sentence is 12 months, and, quite frankly, I think that is an entirely appropriate sentence, given the seriousness of your offending. I am going to impose concurrent sentences on the rest of the matters as well, but your effective head sentence is going to be 12 months. The real issue is, have you done enough time?
You have been brought out here. Your partner has come from Oakey. One of the things that constantly amazes me, when I am sitting in my job, is that I have people who have behaved like you, often quite appallingly, and yet, despite that, they still have family or partners who love them, care about them, support them, even though, sometimes, they are even the victims of their behaviour. And it just goes to show that in this world, no matter how you conduct yourself, love is still one of the most important things that makes the world go round.
Now, that is an extraordinary thing; it is very humbling. But the real issue is what you do as a result. If you recognise, respect, cherish and work on that loving relationship, it is good for the person who is giving it, but it is equally important for you, as the person who is receiving it, and hopefully giving it back. If you want to be a family in which you get to look after your kids every day – and you have got one kid who needs extra care ‑ ‑ ‑
DEFENDANT: Yes.
HIS HONOUR: ‑ ‑ ‑ and I have read the medical reports – I can see how much extra care that kid is going to need, and he is going to need it probably for the rest of his life – then you need to be clean, sober – and I mean sober off both drugs and alcohol – you need to be thinking clearly. You need to be earning an income, so you can look after your family. You need to be able to get your child all of the assistance that he needs.
And you need to be the guy that is there, not only for the good times and the hugs and the cuddles and the gurgles, but for the bad times, when your kid is struggling and when your partner is struggling, and when she needs you and your child needs you to be a clear-headed, hands on, loving, nurturing dad. That is what she needs, and you cannot do any of that in jail. The most you get, if you are really lucky, is a visit once a week, and that lasts all of an hour and then they go.
DEFENDANT: Yep.
HIS HONOUR: So that is what you have got to put out for yourself, and your relapse prevention plan, to me, indicates that you recognise some of those things, that you understand that. But it still requires you – no one else can do this. You can get help for it, you can get support for it, and you really need personal and professional assistance, in every possible way. But it still relies on you. It is what you choose to do with your life, from today, that will make the difference for the next 40 or 50 years, however long you get given in this lifetime.
So what I am going to do with you is this. On each of counts 1 and 2, the threatening violence offences, convicted and sentenced to 12 months’ imprisonment. These are all concurrent. On each of the three commit public nuisance offences, convicted and sentenced to one month on each. On the common assault domestic violence offence, convicted and sentenced to two months’ imprisonment. Attempted enter premises with intent, convicted and sentenced to six months. Imprisonment, wilful damage, convicted and sentenced to two months. Assault or obstruct police, convicted and sentenced to one month.
In respect of those matters, count 1 on the indictment is a domestic violence offence, the common assault is a domestic violence offence and the wilful damage is a domestic violence offence. I declare the period of 109 days, from 30 December 2017 to 17 April 2018, as time served in respect of the sentence. That is just a shade under three months and three weeks. And although there would be some justification of requiring you to serve four months, it seems to me, in all of the circumstances, that it is appropriate to have you released today.
So I set a parole release date of 18 April 2018. The important things you need to understand about that are these. You will be released from the watch-house here some time later today, when the paperwork is done. While you are on parole, the first thing you have to do is, between 9 am and 5 pm today or the next business day, which is tomorrow, report to a Probation and Parole office. My very strong advice is do that before you leave town.
DEFENDANT: Yep.
HIS HONOUR: There is an office here in town. Do it before you leave town, even if you are heading off to Oakey this afternoon. Now, while you are on parole – and this is the hard bit, because you are going to be on parole for just a shade over eight months – you will be under the chief executive’s supervision – practically, that means your parole officer’s supervision – until the end of that period of imprisonment. So eight months and about a week and a couple of days.
You must carry out the chief executive’s lawful instructions. That means that you do what your parole officer instructs you to do lawfully, and your parole officer will be wanting to keep you out of jail. If you stuff up, of course, your parole officer will be recommending that your parole be suspended or revoked, then you go back into jail. But win-win for you and your parole officer is you staying out, with your parole officer’s support. You must give a test sample if required to do so by the chief executive, under section 41 of the Corrective Services Act. In other words, if your parole officer wants you to do a drug test, you have got to do it, and if you are stupid enough to go back on drugs – and I do not apologise for saying that – then you deserve to go back to jail. It is as simple as that.
DEFENDANT: No, I will not, your Honour.
HIS HONOUR: Fantastic. But you have got to keep to that for the next eight and a bit months, at least – I mean, for your own sake, for the rest of your life.
DEFENDANT: It will be for good, yeah.
HIS HONOUR: Good. You must report and receive visits as directed by the chief executive. You make sure you turn up for every parole visit. Even if you have been run over by a bus, you will have your nurse ringing the parole officer, saying, “He is in here, and he has got broken arms and broken legs.” But whatever might happen, you make sure your parole officer knows, on very occasion, where you are, what you are doing, and you make sure you get yourself to those visits, if you are, in any way, physically capable of getting there.
You must notify the chief executive within 48 hours of any change of address or employment during the parole period. Now, I hope you do get a job when you get out. As soon as you get that, you tell your parole officer, within that 48 hours. From your release today, you let your parole officer know where you are going to live, but if, for some reason, that address changes, you let your parole officer know. And finally, and most importantly, you must not commit an offence during the parole period. Follow all that, you get to stay out. Stuff it up, you will go inside. Understand that you are personally responsible. Nobody else; it is you.
As I said, you will hopefully have lots of support, love, hopefully professional assistance, in respect of all of the matters that you have been struggling with, but at the end of the day, it is your personal responsibility. You are the man who keeps yourself out, or stuffs up and goes back inside. You do the time. You do responsibility. My own personal wish for you is that I hope that this works, that this 109 days has been the chance to turn your life around.
You have taken some very positive steps. I am impressed by them. What I hope is that that continues, and that those who love you and care about you and support you can be proud of what you achieve when you get out, and, of course, that you continue to be a hands-on dad, for the benefit of your children, for your own benefit, for the benefit of your partner. Achieve all that, and, hopefully, no other court will see you in the future. Okay?
DEFENDANT: Thank you, your Honour.
0
0
0