R v Collins, Nemet and Nemet No. DCCRM-01-340

R v Matthew Wallace COLLINS,
Anton NEMET and Tomi NEMET
[2002] SADC 17
CRIMINAL – SENTENCE
JUDGE DAVID SMITH
Offences – pleas

The information No. 340/01 charged Matthew Wallace Collins, Anton Nemet and Tomi Nemet with:
“Statement of Offence
1.     Serious Criminal Trespass in a Place of Residence.
Particulars of Offence
Michael Collins, Anton Nemet and Tomi Nemet on the 6^th Day of January 2001 at Elizabeth Downs, entered or remained in a place of residence of Steven John Nunnerly as trespassers, with the intention of committing an offence, namely assault.
It is further alleged that at the time of the offence, they had in their possession offensive weapons, namely a mace and an axe handle. It is further alleged that at the time of the offence, Steven John Nunnerly was lawfully present in the place and they knew of his presence or were reckless about whether he was in the place.
Statement of Offence
2.     Common Assault.
Particulars of Offence
Matthew Wallace Collins, Anton Nemet and Tomi Nemet on the 6^th Day of January 2001 at Elizabeth Downs, assaulted Steven John Nunnerly.
Statement of Offence
3.     Damaging Property.
Particulars of Offence
Matthew Wallace Collins, Anton Nemet and Tomi Nemet on the 6^th Day of January 2001 at Elizabeth Downs, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged a television and a table the property of Steven John Nunnerly.”
When first arraigned in this Court on the 23^rd April 2001, all three defendants pleaded not guilty to all counts.
On the 21^st August 2001, Matthew Collins pleaded guilty to Serious Criminal Trespass in a Place of Residence. The Crown accepted the plea in full satisfaction of the information and the trial then proceeded in respect of Anton and Tomi Nemet who maintained their pleas of not guilty to all counts.
On the 24^th August 2001, the jury returned the following verdicts:
Serious Criminal Trespass in a Place of Residence
         As to Anton Nemet, unanimous verdict of Guilty.
As to Tomi Nemet, unable to reach verdict
Common Assault
         As to Anton Nemet, unanimous verdict of Guilty.
         As to Tomi Nemet, unable to reach verdict.
Damaging Property
         As to Anton Nemet, unanimous verdict of Guilty.
         As to Tomi Nemet, unanimous verdict of Not Guilty
Then on the 30^th October 2001, Tomi Nemet was re-arraigned before me and pleaded guilty to Count 1 (Serious Criminal Trespass in a Place of Residence). The Crown accepted that plea in satisfaction of what remained to be tried on the information, namely Count 2 (Common Assault).
Circumstances of offending
According to Tomi Nemet, on the 1^st January 2001, six days prior to the day of the offences, whilst in company with his brother Anton, he was attacked at a bus stop by a man with an iron bar. He sustained a broken arm. He was admitted to hospital and his arm was put in a plaster.
Later, Tomi Nemet was given information about the likely whereabouts of his assailant. So, in the early hours of Saturday morning the 6^th January 2001, Tomi Nemet and Matthew Collins, who was told of the bus stop attack, woke Anton Nemet and they set off in Matthew Collins’ car to 8 Bendle Street, Elizabeth Downs to exact revenge. They had with them an axe handle and a weapon, somewhat akin to a medieval mace – frightening weapons. On being denied entrance, they smashed their way through the front door and confronted the occupant Steven John Nunnerly, who, as it turned out was not the bus stop assailant. Mr Nunnerly was assaulted and as a result suffered cuts and abrasions to the face, head and arms. Three stitches were required to a laceration of his chin.
The security door, the front door and walls were damaged during the entry and a window in the bedroom was broken. Mr Nunnerly’s television set, his washing machine, coffee table and a fan were also damaged beyond repair. These damaged furnishings are the subject of the third count, Damaging Property. These items still have not been replaced. The South Australian Housing Trust has repaired the doors and window and walls.
Two neighbours, Mr Keith Edwards and his then partner Ms Kerry Peacock, came over to Mr Nunnerly’s house upon hearing the noise of the intrusion. Mr Edwards entered the house and, notwithstanding the presence of the three men and the frightening circumstances, attempted to go to the bloodied Mr Nunnerly. He is to be commended for his courage. He was grabbed by the hair and forced from the house. The Police who had been telephoned by Mr Edwards arrived promptly. A cordon was set up and all three defendants were arrested hiding in nearby premises. Police also located the axe handle and mace both of which had been discarded.
When interviewed by Police all defendants declined to answer questions.
It is notable that a witness in the trial, whom I accept without reservation, recounted how she saw the three defendants walking away from No 8 Bendle Street and heard one of the defendants say “I hope it was the right address”. Of course this is in conflict with the contentions of all three defendants that upon ascertaining that Nunnerly was not the right man they effectively desisted.
Impact on victim
When the victim, Mr Nunnerly, gave evidence on the 21^st August 2001 he could not recall the events of the 6^th January 2001 by reason of having suffered amnesia as a result of some event which befell him on the 30^th June 2001. However, his declaration completed on the 17^th February 2001 recounted the invasion of his home in full detail. The Victim Impact Statement was completed by him on the 11^th April 2001 at a time prior to his amnesia. In the statement he recounted that as a result of the intrusions he suffered from depression and anxiety and was apprehensive when in public places. He said he had become reclusive, suffered with disturbed sleep and became dependent on alcohol. Presumably the amnesia has also obliterated the unpleasant memories of the events of the 6^th January 2001.
Basis of sentencing
I have recounted the above circumstances of offending without detailing “who did what”, because there is considerable conflict as between the defendants as to the precise role played by each. The evidence in the trial did not enable me to resolve some of these conflicts because Mr Nunnerly had no memory of what happened to him, Mr Edwards arrived on the scene after an assault on Nunnerly and then was forced out of the house, and the evidence of Tomi Nemet was wholly unreliable. The early submissions of respective counsel compounded these difficulties because the defendants, through their counsel, all sought to minimise their roles. In particular, Collins and Tomi Nemet blamed one another for instigating the trip to Elizabeth Downs. A number of matters therefore remained unresolved, namely, who instigated the trip, who had what weapons in his possession inside the house and who assaulted Nunnerly.
In the end, it was agreed by counsel that it would not be necessary to hear evidence but that sentencing should proceed on the basis that the three defendants accept that they were joined together in the enterprise which contemplated the forcible entry into 8 Bendle Street and the assault of the occupant.
So I now turn in detail to the basis of sentencing bearing in mind the pleas and the Jury verdicts, and mindful that I am to sentence on my view of the facts provided that it is not inconsistent with the Jury’s verdict; (see R v Stebhens (1976) 14 SASR 240). Further, in accordance with the guidance set out by DeBelle J at 435-440 in R v Delphin (2001) 79 SASR 429, I propose sentencing each of the defendants only for the offences to which each have either pleaded guilty, or in respect of which they have been found guilty. Furthermore, in the circumstances of this matter I will not take into account when sentencing Collins and Tomi Nemet, who have neither pleaded guilty nor have been found guilty of the offence of common assault, that the shared intention to commit an assault was actually carried out upon entering the premises, notwithstanding that such a circumstance could be said to be a relevant and surrounding circumstance in weighing the gravity of the offence of Serious Criminal Trespass.
I intend sentencing each of the defendants for the offence of Aggravated Serious Criminal Trespass in a Place of Residence on the basis that all three are equally culpable. I am not satisfied that the probabilities are that the role of any one of them was different than the other.
As to the offence of Common Assault, Matthew Collins, whilst admitting that he did assault Nunnerly by “jabbing” him in the face, has not pleaded guilty to that offence. Accordingly, he cannot be sentenced separately for that offence and as indicated I will not sentence him on the basis that it is a circumstance of aggravation. I take into account in imposing a penalty for Count 1. Anton Nemet on the other hand, has been found guilty by unanimous Jury verdict of Common Assault. It was put quite properly that the Jury could have been convinced that he was guilty of that offence by acting in concert with Matthew Collins who actually carried out the assault. In my view, whether he struck the blows or acted in concert with whoever did so, will make no difference to the penalty I consider to be appropriate.
As far as Tomi Nemet is concerned, his counsel, Mr Chesterman, submitted that he withdrew from the enterprise having discovered that Steven Nunnerly was not the bus stop assailant. The Jury were unable to reach a verdict in respect of him as to the assault, perhaps on the basis that some of their number accepted this as a reasonable possibility. As indicated, I have reservations about accepting that submission of withdrawing, bearing in mind the comment heard by a neighbour as the three men left the house to the effect “I hope it was the right address”. However, in the end Tomi Nemet like Collins, has neither been found guilty of, nor pleaded guilty to, Common Assault. So I sentence Tomi Nemet on the basis that he did not participate in the assault either directly or in the sense of acting in concert with one or both of the others.
In respect of the offence of Damaging Property, again I note that Tomi Nemet was acquitted of that charge. Matthew Collins, through his counsel, submitted that it was Anton Nemet who damaged Nunnerly’s furniture. He, Collins, has not pleaded guilty to that offence and denies that he did it. Rather, the jury have found Anton Nemet guilty of that offence. Accordingly, I propose sentencing on the basis that it was Anton Nemet who damaged Nunnerly’s furniture.
Circumstances of offender – Matthew Wallace Collins
In addition to counsel’s submissions, I have before me, and I have taken into account:
·the antecedent report;
·a report dated the 24^th August 2001 from the psychiatrist Dr Craig W.J. Raeside;
·a report dated the 11^th May 2001 from Dr Tiong Jin Su who is Matthew Collins’ long-time family general medical practitioner; and
·a letter from Matthew Collins’ father dated the 13^th of December 2001 addressing the family problem with alcoholism.
The antecedent report discloses prior offences of violence, in particular three offences of Common Assault and an offence of Resist Police. This prior offending is not of the same dimension of seriousness as this offence.
It is of significance that prior to this offending, Collins was diagnosed by Dr Su as suffering from a depressive disorder, and was seeking treatment not only for that but for problems associated with his use of amphetamines. The report of Dr Raeside makes it clear that about a month prior to the offending the treatment prescribed by Dr Su was improving his condition.
Collins was born in Adelaide on the 26^th September 1973 and so is now 28 years old. He was the middle of three boys and was raised in Adelaide. His father had a drinking problem and from time to time resulted in him being aggressive at home towards his children and his wife. Schooling for Collins was rewarding and he reached Year 11 at the Goodwood Trade School. He completed a further year of study after school, in plumbing and sheet metal work.
There followed a history of almost full employment starting with three years at Clipsal as a dye setter, four years as a storeman with Frigmobile, and culminating with a stores job with a mining equipment supplier named Liebherr at Para Hills West. He has been unemployed since August 2001 when his employer, embarrassed by the publicity this matter attracted, asked him to resign. He did so.
The report of Dr Raeside points out the history of alcohol and drug abuse. In particular, Collins’ alcohol abuse has been the dominating cause of his difficulties and underlays this offending. Dr Raeside accepts that he may have had a major depressive disorder in the year leading up to his consultation with him in August 2001 but notes that he has “... responded well to anti-depressant medication”.
Collins has been on bail and lives with his girlfriend at an undisclosed address. His attempts at obtaining employment have been hampered by the prospect of a custodial penalty being imposed in respect of this matter.
Circumstances of offender – Anton Nemet
I have before me, and I have taken into account, both counsels’ thorough submissions and the forbidding antecedent report which discloses almost multiple annual offending from 1984 to 2001. There are numerous prior court appearances for assault, resisting police, cannabis offences, breaking and dishonesty offences.
Anton Nemet is 35 years old. He was born in 1966 and came to Australia when an infant. He is the seventh of nine children, two of whom are deceased. His father died in 1995 and his mother is alive and supportive of him. Until being taken into custody in this matter he lived with his mother. He failed Year 10 and then left school. There followed some employment, first of all picking vegetables and then working in a factory.
In about 1984, when aged 18, he became acutely psychotic and was admitted to Hillcrest. His counsel Mr Longson said it was no accident that his prior offending began at that time. When in James Nash House he was diagnosed as having paranoid schizophrenia. There was no psychiatric report placed before me as to these matters and whether Anton Nemet’s mental ailments had any bearing on this offending. Mr Longson, counsel for Anton Nemet, told me that his client instructed him that the report which indeed had been obtained was not to be proffered in mitigation because he perceived it as disparaging of his family. Mr Longson, specifically did not contend that his client was suffering from any lack of full responsibility for this offending by reason of his history of mental illness.
Over the years Anton Nemet has taken medication for his psychiatric condition, however, because of unpleasant side effects, he abandoned the medication and began using heroin and also cannabis which he considered alleviated his symptoms. He also used amphetamines from time to time. There have been multiple admissions to psychiatric institutions including James Nash House.
Anton Nemet has not worked since the age of 18 years. His adult life has been dominated by criminal offending, court appearances and incarceration. As indicated, the antecedent report shows numerous street offences including breaking offences and offences of violence. There is no offending in his history as serious as this. He has been in custody in relation to this matter since the 6^th January 2001. In custody, he has had access to full-time psychiatric care and as a result has felt well for the first time since adolescence. He is no longer taking illicit drugs and has occupied himself in the Remand Centre playing the guitar, drawing and he has returned to the practice of his Catholic faith. When released, he plans to return home to live with his mother and explore working at his father’s trade of bricklaying. He also intends to undertake tuition in art.
Circumstances of offender – Tomi Nemet
I have had regard to:
·submissions of counsel;
·antecedent report;
·psychiatric report of Dr Maria Tomasic (psychiatrist) dated 22^nd May 2001;
·the psychiatric report dated the 26^th November 2001 of Dr Craig Raeside; and
·the pre-sentence report of Kirsty Cordingly dated 8^th November 2001.
Tomi Nemet was born on the 25^th August 1972 and so is now 29 years old. He was born in Adelaide. He is the father of two children aged nine and seven in respect of whom he has supervised access. He has been on home detention bail in respect of this offence for some time and has been residing with his mother.
At the age of 14, whilst at school, he started using drugs and alcohol. Despite difficulties at school he remained there until Year 11. He has had “a couple of jobs here and there” since leaving school the longest period of employment being at a Foodland store for three months. At the age of 19 he commenced a relationship of some six years with the mother of his two children. It ended upon her obtaining a restraining order against him for physical violence.
The antecedent report shows a depressing array of offences stretching from 1987 until the year 2001. It is notable that these include a number of offences of violence.
The report of Dr Raeside draws attention to a psychotic episode early in 2001 when Tomi Nemet was in the Remand Centre. This is explored in the report of Dr Maria Tomasic. Dr Raeside said that it could have been either drug related or the emergence of “an undiagnosed psychotic illness such as schizophrenia”. However, as at the 26^th November when examined, Dr Raeside found no evidence of current psychotic disorder.
Tomi Nemet was in custody in relation to this matter from the time of his arrest, namely 6^th January 2001 until the 28^th May 2001 when he was released on home detention bail which is the current situation.
Sentencing Considerations
The maximum penalty for the aggravated offence of Serious Criminal Trespass in a Place of Residence is life imprisonment; (see s170 of the Criminal Law Consolidation Act 1935). For the offences of Common Assault and Damaging Property the maximum penalties are two years imprisonment; (see ss39, 85(3)).
I turn to the offence of Serious Criminal Trespass in a Place of Residence. It is a frighteningly prevalent offence, particularly in its aggravated form. People are no longer able to feel secure in their own homes. It is a sad fact that security systems are becoming a necessary household appliance. General deterrence, indeed prevention, are paramount sentencing considerations. There have been recent substantial increases in penalties prescribed by Parliament for this species of offence. This is indicative of Parliament’s intent that the courts should impose deterrent penalties for the invasions of people’s homes; (see R v Delphin (supra) per Debelle J).
The particular circumstances of this offending disclose an act of grave criminality. It was a violent, cowardly and misguided act of revenge. The spectre of the three defendants, two of whom were carrying primitive weapons must have been frightening in the extreme. It is a lucky circumstance that Mr Nunnerly now has no memory of the events. The offending is not mitigated by the fact that the three were intoxicated. The assault and the damaging of property by Anton Nemet are particularly serious offences of their type because again they were arbitrary acts of violence committed in the early hours of the morning in the victim’s home.
I turn now to the individual sentences.
Sentence – Collins
Collins has been on bail since the day of his offending. He pleaded guilty on the first day of trial, namely the 21^st August 2001, but I accept that through his lawyers he indicated a guilty plea much earlier and moreover offered to give evidence against his co-offenders. He is entitled to and I will give him full credit for his guilty plea. I accept that underlying the guilty plea was contrition and remorse. Indeed I note also that this offending is much more serious of any of Collins’ prior offending. I propose applying a discount of 25 percent for the plea of guilty. Overlaying the plea of guilty is the fact that Collins through his lawyers offered to give evidence against his co‑defendants. I was told by counsel that the Crown declined this offer because of the degree of Collins’ intoxication on that morning. However, though the offer was not taken up it is my view that on grounds of clear policy, that the defendant Collins should be given a further discount on his sentence for this intended cooperation with the prosecuting authorities; (see R v Golding (1980) 24 SASR 161; R v Cox (1996) 66 SASR 152 and R v Barany (2002) 114 A Crim R 426). I propose giving Collins a further discount of 15 percent.

The sentence of the Court is that Collins be imprisoned for three years. If it were not for the plea of guilty and the offer of further cooperation in the form of giving evidence the period of imprisonment would have been five years.
I now turn to the non-parole period. I take into account all the encouraging personal matters previously outlined, and in particular that this is Mr Collins’ first foray into crime of a grave and serious sort. Further, his present personal circumstances show that some measure of rehabilitation in the form of addressing his problems, particularly that of abusing alcohol is underway. The plea of guilty and the cooperation are also relevant matters in fixing the non-parole period. Accordingly, I fix a non-parole period of 9 months.
I now turn to the suspension of the term of imprisonment. I take it account all that was urged upon me by Ms Read. However, this offending is too grave. I decline to suspend the term of imprisonment. Both the head sentence and the non-parole period are to commence today.
Sentence – Anton Nemet
For the offence of Aggravated Serious Criminal Trespass in a Place of Residence the sentence of the Court is that Anton Nemet be imprisoned for five years.
Pursuant to s18A of the Criminal Law (Sentencing) Act 1988 I impose one penalty for both the Common Assault and Damaging Property offences. The sentence of the Court in respect of those two offences is that Anton Nemet be imprisoned for a period of 12 months. That sentence is to be served concurrently with the sentence for the Serious Criminal Trespass offence. In my view, the connection between the crimes is sufficient to permit such a course; (see Attorney General v Tichy (1982) 30 SASR 84). The Serious Criminal Trespass, the Common Assault and Damaging Property offences could justifiably be regarded as one transaction.
Further, I am of the view that the mix of circumstances leading to the verdicts and pleas here have resulted in Anton Nemet disparately bearing the brunt of the subsidiary offences.
So the head sentence is five years. I fix a non-parole period of three years. There can be no suspension of this sentence. Both the head sentence and the non-parole period are to commence on the 6^th January 2001.
Sentence – Tomi Nemet
Tomi Nemet was in custody from the 6^th January 2001 to the 29^th May 2001 when he was granted Home Detention bail. Accordingly, both the head sentence and the non-parole period should take that period of say five months into account by way of a credit. I decline to take into account the period of Home Detention; (see R v Malesevic (1999) 204 LSJS 32). Further, I allow a 10 percent discount for the eventual plea of guilty.
So for the Aggravated Serious Criminal Trespass in a Place of Residence it is the sentence of the Court that Tomi Nemet be imprisoned for four years and one month. If it were not for the discount of 10 percent for the guilty plea and the five months in custody, the sentence would have been five years.
I fix a non-parole period of two years and four months. Again I indicate that if it were not for the period of approximately five months spent in custody the non-parole period would have been 2 years and 9 months.
Accordingly, in respect of Tomi Nemet the head sentence is four years and one month and the non-parole period is two years and four months.
There are no circumstances warranting the suspension of this sentence. The offence is too grave and the matters personal to the defendant which give rise to the consideration of suspension are not compelling enough.
The periods of the head sentence and the non-parole period are to commence today.

[2002] SADC 17

28 February 2002