R v Colvin (No 2)

[2021] NSWDC 494

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Colvin (No 2) [2021] NSWDC 494
Hearing dates:	13 August 2021
Decision date:	20 September 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years 2 months with a non-parole period of 2 years
Catchwords:	CRIME — Aggravated Break Enter and Commit Indictable Offence Intimidation — Common Assault — Destroy or Damage Property SENTENCING — Relevant factors on sentence — Sentence after judge alone trial — Domestic violence related — Breach of parole — Institutionalised — Long history of offending — Childhood deprivation and abuse — Mental illness — Accumulation and totality — Assistance with the course of justice during the pandemic — Contracts COVID-19 while in custody — Other impacts of COVID-19 considered
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Chenhall v R [2021] VSCA 175 Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Droudis v R [2020] NSWCCA 322 Engert v R (1995) 84 A Crim R 67 Jinnette v R [2012] NSWCCA 217 R v Colvin [2021] NSWDC 390 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v McNaughton (2006) 66 NSWLR 566 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Worboyes v R [2021] VSCA 169
Category:	Sentence
Parties:	Jason Keith Colvin (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s):	2020/00229157

sentence

Introduction

1. On 11 August 2021, after a judge alone trial, I convicted Jason Keith Colvin of the offence of Breaking and Entering the home of his sister and committing the serious offence of Intimidation, in the Circumstance of Aggravation that he Knew Others to be There: Crimes Act (NSW) 1900, s 112(2); R v Colvin [2021] NSWDC 390. The offence has a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 5 years. The standard non-parole period represents the non-parole period for an offence “that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2).

2. After the trial I also convicted Colvin of two related offences that came to the Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate:

1. Common Assault: Crimes Act 1900, s 61, maximum penalty 2 years imprisonment.

2. Destroy or Damage Property: Crimes Act 1900, s 195(1)(a), maximum penalty 5 years imprisonment.

3. I heard sentencing submissions on 13 August 2021 but there was no time left in a long day to finalise the matter. Since then, the matter has been adjourned a number of times as Mr Colvin tested positive for COVID-19 and was placed in lockdown in Parklea Correctional Centre.

Facts for sentence

4. Colvin came to his sister’s house in Warrawong on 27 July 2020. It was a wet day and he arrived drenched. He told her he had been having “troubles”.

5. Colvin suffers from treatment resistant schizophrenia. He had been non-compliant with his medication after receiving parole in April 2020. He had also just spent 9 days in custody before getting bail on 21 July 2020. He had nowhere else to go so she let him stay.

6. That night they shared a meal of spaghetti bolognaise with the other residents. Colvin went to sleep but when he woke late in the evening he couldn’t find his ‘bum-bag’. It had his ‘smokes’, money and other personal items in it. He thought someone at the house had taken it. He wanted it back and when it couldn’t be found he became upset.

7. The controversy at trial arose about what happened next. The complainant told me that Colvin didn’t believe her when she said she knew nothing about his ‘bum-bag’. He became more and more aggressive.

8. She told him to leave as he was scaring her friend. He told her, “go fuck yourself”. She and her friend went to her bedroom and locked the door. She told me that he had “snapped” before but had never been violent toward her, but this time she feared for her safety. She was also concerned for her female friend, who was domestic violence victim.

9. From her bedroom she could hear Colvin in the house. She then heard him go toward the front door. As he was leaving, she left her room, ran to the front door and locked it. He was outside yelling. She locked up the rest of the house. She then went back to her bedroom and again locked the door behind her and her friend.

10. Within minutes she heard him inside her home; first, in the bedroom next to her room and then coming to her door. He kicked in the door of her bedroom; smashing it off its hinges. He stood over her while she was on the bed. He punched her head two times and slapped her head once. He threatened to burn her house and car. She kicked out at him and said she was going to “ring the cops.” He then ran out the door as she called 000.

11. She later told police that as a result of the blows she had “a headache a bit.” She also showed them the screen to the spare bedroom window, which had been cut. She said it was not like that before.

12. In evidence at his trial, Colvin told me he did break in the door of the bedroom. He was emphatic – he would never have hit his sister. He told me that as he did not leave the house, she could not have locked him out and he had not needed to enter through the window. I did not accept his version of events. It was inconsistent with the immediate complaints made, the damage to the window screen and the overall logic of events.

Objective seriousness

13. Colvin was a guest in his sister’s home. He was understandably angry that his ‘bum-bag’ had gone missing but what he did thereafter was a gross overreaction. The offending appears to be spontaneous but an angry and violent reaction to being unable to find the ‘bum-bag’ that contained his only possessions.

14. His sister was right to lock the door against him and he had no right to damage the window screen and force entry. But, it is what he did after that that makes this offence serious. Inside her home; he broke down her bedroom door, he made serious verbal threats to her, he intimidated her and he assaulted her. While the actual physical injury was slight, the breach of trust by a brother and the loss of security in her home, merits serious punishment.

15. The assault involved multiple hits to her head while she was on her bed in her home trying to defend herself. The door and door surrounds were ruined.

16. The maximum penalties and standard non-parole period provide guides when I come to synthesis an appropriate penalty. While content must be given to the standard non-parole period, it is not suggested that it should be a significant factor in this sentencing exercise.

Relevant factors on sentence

COVID-19 and a judge alone trial in 2021

17. Colvin relinquished his right to a jury trial during the currency of the pandemic. He also cooperated further with the course of justice by restricting the trial to very specific issues and reducing the number of witnesses who need to be called. This facilitation of the course of justice must be considered: Crimes (Sentencing Procedure) Act 1999, s 22A. Such action is worthy of greater weight in mitigation and amelioration of sentence than cooperation at a time when the community and the courts are not affected by the pandemic’s effects: Worboyes v R [2021] VSCA 169; Chenhall v R 2021] VSCA 175. While not necessary, it is preferable to nominate a numerical discount for this factor: Droudis v R [2020] NSWCCA 322 at [104]-[105]. I propose to reduce the sentence by 5% in accordance with s 22A.

18. COVID-19 has entered our gaols. After the matter was last adjourned, Colvin tested positive. He has been sick, he has lost weight and he has been kept in isolation. At present no prisoners have been allowed early parole but Colvin falls into a category that might be considered for it: Crimes (Administration of Sentences) Act 1999, s 276.

19. Social visits have been suspended for over a year reducing any capacity to remain in contact with pro-social friends and family. Access to telephone calls and AVL links has increased. Although recent evidence in this Court indicates there are often long delays. I have also heard evidence about there being fewer programmes, reduced work opportunities and more lock downs where prisoners are confined to cells. The offender has endured over a year of such restrictions and has caught the virus while in custody. These are all relevant factors that must be synthesised along with all other matters.

Criminal history

20. Colvin has a lengthy criminal record. That record demonstrates continuing offending and requires a more severe penalty in order to give effect to the need for retribution, specific deterrence and the protection of the community: R v McNaughton (2006) 66 NSWLR 566; Veen v The Queen (No.2) (1988) HCA 14.

21. He was released to parole only months before this event, after serving the non-parole period of a sentence of 5 years and 6 months that commenced 1 March 2016. That sentence was for multiple offences of dishonesty, including two counts of Aggravated Break Enter and Steal.

22. He was arrested on 6 August 2020. His parole was revoked from 6 August 2020 with a balance of 1 year and 4 weeks that expired on 2 September 2021.

23. He was subsequently sentenced for those other offences and others committed after 6 August 2021. For the offences that were pending before the court at the time of this offence; three counts of Larceny/shoplifting and one count of Disposing of Property he was sentenced to a fixed term of 8 months imprisonment from 4 June 2020 to 3 February 2021. For five offences of contravening an Apprehended Violence Order involving his sister by sending her letters from custody breaching a non-contact condition, he was sentenced to concurrent terms of 2 months from 1 January 2021 to 28 February 2021.

Subjective case

24. I have the considerable benefit of a reports prepared by Dr Furst and Dr Elliot. Ms Parkes, in written submissions, provided a succinct summary of the offender’s back ground. It is not controversial.

Background

25. Colvin is now is 45 years old. He has spent the majority of his adult life in gaol. There are only two significant gaps in his NSW custodial history. One was when was in prison in Queensland from 1995 to 1998. The second, between October 2014 and March 2016, corresponds with a time when he was in a stable relationship and living with his mother. But even during this period he spent about two months in the Shellharbour Hospital for treatment of his mental illness.

26. His childhood was traumatic; characterised by domestic instability and sexual abuse. He never knew his father. His education was incomplete. He was abused and he was excluded from the family home. From 14 he was a ward of the State and had multiple placements in boys’ homes, resulting in extreme social and educational disadvantage. He commenced using of illicit substances as a child. He became addicted to heroin at 15 years; in part to deal with the memories of being sexually abused. He also experienced the Juvenile Justice system and spent time at Juvenile Detention Centres.

27. That history demonstrates both early childhood deprivation and also helps explain his trajectory into drug use and criminality. He is not as morally culpable as an offender who did not have these disadvantages. The effects of this sort of disadvantage do not diminish with the passage of time and will be given full weight when I formulate an appropriate sentence: Bugmy v The Queen (2013) 249 CLR 571.

28. His sister was, until this incident, the only family support he had. Now because of his own criminal actions toward her he has lost that support.

Mentally ill offenders

29. Dr Furst concludes that Colvin meets the diagnostic criteria of Schizophrenia and Substance Use Disorder. His schizophrenia has developed over the last 6 years or so on a background of a lifelong history of emotional disturbance, drug dependence and institutionalisation. Childhood sexual abuse and sexual assaults as a young adult likely precipitated and maintained his drug addiction. He has a strong biological loading or vulnerability toward schizophrenia. His ‘ice’ use likely exacerbated this illness.

30. Sentencing offenders who suffer from a mental illness raises difficult questions of judgment and assessment. Those problems are exacerbated where serious crimes are committed. They have been described as “to an extent intractable”: Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1] (Basten JA). They require a “sensitive discretionary decision”: Engert v R (1995) 84 A Crim R 67 (Gleeson CJ).

31. A judge has to consider the purposes of the sentence in s 3A Crimes (Sentencing Procedure) Act and also common law principles such as “.. protection to society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”: Veen v R (No 2) 164 CLR 465;[1988] HCA 14 at [476].

32. There are some cases where the offender’s mental illness, disability are such that human sympathy would say, “Well, you would not expect him [or her] to get the same sentence as someone else”: Engert v R (1995) 84 A Crim R 67 at [70] (Allen J). There are other cases where, because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of community protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [28]

33. As the decisions in Veen (No 2) and Engert make clear, the mental illness of the offender, even if causally relevant to the commission of the crime, does not lead, as an automatic (or logical) consequence, to a reduction in sentence because of its effect on moral culpability.

34. Other principles that can be applied when sentencing an offender suffering from a mental illness, intellectual disability or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. Each has to be considered in the context of this case. Omitting citations, they are:

“Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

It may reduce or eliminate the significance of specific deterrence.

Conversely, an offender’s mental illness may mean that he or she presents more of a danger to the community than a person not afflicted by such a condition and considerations of specific deterrence may therefore result in an increased sentence.”

Submissions

35. I am indebted to Ms Hughes, Solicitor for the Director of Public Prosecutions (DPP), and Ms Parkes, for the offender, for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determinations.

36. Ms Hughes accepts that Colvin’s longstanding mental health and related mental health issues should be given proper weight, but she notes that the letters subsequently sent to his sister show the extreme level of animosity he harbours toward her:

“They express overt, violent threats and show a blatant disregard for the ability of the law to protect the victim …The letters demonstrate a crucial need for specific deterrence, particularly in relation to offending against the victim. They highlight the level of potential dangerousness the offender presents. They display an utter disregard for the ability of criminal sanctions to curb his actions which elevates the danger the offender presents to both the victim and the community.”

37. Ms Parkes notes that the offender has already been sentenced for the letters and should not be double punished. She concedes that absent a structured treatment plan and prosocial community supports on release, the offender is at risk of re-offending. At present Colvin is institutionalised, functionally impaired and prone to relapses of mental illness. Unless he can get adequate support in custody and in the community that situation is likely to continue. He has lost any family support he had but a plan can be put in place for his release. Dr Furst recommends that when released to the community he be subject to a Community Treatment Order (CTO) and given supported accommodation, such as at the Integration Support Centre at Campbelltown.

Special circumstances

38. Colvin’s history can give me no comfort he will not reoffend but the longer he is supervised on parole the better chance a treatment plan may have some effect. Further, the additional hardship he suffers in custody because of his mental condition must be taken into account: R v Hemsley [2004] NSWCCA 228 at [41]. A long period of conditional and supervised liberty may assist the protection of the community by maximising the prospect he will not reoffend again: Jinnette v R [2012] NSWCCA 217.

39. This sentence must commence some time after he was first arrested to recognise his breach of parole and allow some punishment for the matters dealt with in the Local Court. It should commence on 6 February 2021. All of these matters require a finding of special circumstances.

Synthesis

40. Colvin must be removed from the community for a period so that he can be adequately punished, but he will have to return to the community, and the longer he can be supervised on parole the safer the community will be.

41. His tragic background must be given full weight, but the sentence must also recognise the harm he did to his sister and punish him for what he did to her and her home. He is capable of learning. He capable of change but he will need help doing so. If he takes that help his life may improve. If he does not, he will return to gaol.

Orders

42. I indicate the following sentences, less 5% for the assistance with the course of justice: Crimes (Sentencing Procedure) Act 1999, s 22A.

1. Aggravated Break Enter and Commit Indictable Offence Intimidation – as it carries a standard non parole period, I indicate a sentence of 2 years 10 months with a non-parole period of NPP 1 year 8 months.

2. Common Assault – I indicate a sentence of 1 year.

3. Destroy or Damage Property – I indicate a sentence of 8 months.

43. The total aggregate sentence is 3 years 2 months. There will be a non-parole period of 2 years commencing 6 February 2021 and expiring 5 February 2023. The balance of the sentence of 1 year 2 months is to commence upon the expiration of the non-parole period on 6 February 2023 and expiring on 5 April 2024.

44. You will be eligible for release to parole at the expiration of the non-parole period on 5 February 2023.

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Amendments

20 September 2021 - "No 2" added to title

20 September 2021 - Typographical error in sentence end date: 5 April 2024 not 2023

17 April 2024 - Reformatted

18 April 2024 - Amended typographical error

Decision last updated: 18 April 2024