R v Connolly

[2016] NSWDC 325

District Court

New South Wales

Medium Neutral Citation:	R v Connolly [2016] NSWDC 325
Hearing dates:	13 May 2016
Date of orders:	13 May 2016
Decision date:	13 May 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For the offence of common assault appearing on s166 certificate the offender is sentenced to a fixed term of imprisonment for 18 months. For the offence of aggravated break and enter and commit serious indictable offence, sentenced to imprisonment consisting of a non-parole period of 3 years and head sentence of 6 years.
Catchwords:	CRIMINAL LAW – Sentence – Common assault – Aggravated break enter and commit serious indictable offence – Inflict actual bodily harm – Home invasion – Assault on 14 month old child – Offences unexplained
Legislation Cited:	Crimes Act
Category:	Sentence
Parties:	The Crown Benjamin Connolly
Representation:	Counsel: Mr P Krisenthal – The offender   Solicitors: Director of Public Prosecutions Legal Aid Commission – The offender
File Number(s):	2015/261308

SENTENCE

1. HIS HONOUR: Sometimes offences under s 112 (2) of the Crimes Act are described as home invasions. The offences I am about to describe well fit that description. What happened on Father’s Day last year to the two victims of the offender’s substantial criminality is something that should never happen to anyone.

2. It was on Sunday 6 September at about 8.30 pm that Ms Taylor-Parsons was at her home with her 14 month old son. It is important to emphasise the age of the son, 14 months. She was speaking to a friend on a mobile phone when she heard something hitting the rear glass sliding door of her home. She turned around and saw the offender standing there with a yellow shirt covering his face. Not surprisingly she immediately called triple 0, and ran to her bedroom, taking her young son with her. She was able to hear the side gate open and shut a number of times and then heard the front flyscreen rip. The offender then entered the home through the front door and walked to Ms Parsons’ bedroom. He still had his face covered with his yellow T-shirt. He said “Where’s the gear and where’s the money?”. This was a bizarre request. Ms Parsons has never been involved in the supply of prohibited drugs.

3. She said “I don’t have any, I don’t smoke or drink”. The offender said “You’re lying”. It was during this exchange that without any explanation at all, not that there was any explanation for what had occurred beforehand, that the offender then approached Ms Parsons, who was sitting on the ground holding her son. Without any warning he punched her twice with a closed fist, first to the mouth and then to the left side of her jaw. These must have been substantial blows because they caused Ms Parsons significant physical injuries, which I will speak about later.

4. The offender was continuing to repeat “Where’s the gear?”. He then said “Put your son on the bed and your phone on the bed and yourself on the bed”. Ms Parsons, clearly terrified by this stage, said “No, you’ll rape me”. He said “I can’t rape you because I’ve had my dick cut off”. She stood up, holding her son. Again he repeated “Put your son down”. When she would not do it he grabbed the 14 month old boy by the head and tried to pull him away from Ms Parsons. Not surprisingly she would not let him go.

5. All this time her mobile phone had been connected to emergency services. The offender said “Give me the phone”, and then said “If anyone comes in I’m going to blow their head off”, putting his hands down the back of his pants as he said so. He was not finished with Ms Parsons, he was not finished assaulting her. He then grabbed her by the neck with both of his hands and squeezed her throat. As he did this he said “Give me what I want, I don’t get paid for jobs I don’t do”. Then he just let go of Ms Parsons and walked to the lounge room, punching the television screen and pushing it off the cabinet as he walked out of the house. This allowed Ms Parsons to run away. She went to her neighbour’s home.

6. Given that all this had occurred while Ms Parsons was on the phone to triple 0, it was not surprising that it was not very long before the offender was arrested. He was taken to Maitland Police Station where he was interviewed by police. He denied committing the offences. He said he had been at a friend’s house since about 11 o’clock that day and had drunk quite a bit. He said that he left his friend’s house after an argument with his partner to walk around the block and that he had only gone to the place where he was arrested to urinate.

7. I mentioned before that Ms Parsons suffered physical injuries from being struck by the offender. Her teeth were partially dislodged so that they are no longer straight. She suffered a swelling to her top lip. There was a swelling and bleeding to her gums around the displaced tooth and the injury to her tooth, gums and lips caused her pain. She was sore on the left side of her face from her nose to her jaw and suffered a sore neck. It is apparent that she continues to suffer, both physically and psychologically.

8. She read to the court a victim impact statement which she had prepared. In that document she speaks eloquently of the consequences for her of the offender’s unlawful and frightening conduct. She says for example that that was the scariest night of her life and she honestly feels that life will never be the same again. She explains that her son still suffers from nightmares. She now needs implants for her teeth, and surgery, and that every time she eats and drinks she is reminded of the attack because of injuries that she can feel. Her jaw still clicks and is sore and she is experiencing ongoing pain. She finishes her victim impact statement by saying “We have not recovered from these events and I am not sure we ever really will”.

9. These consequences for Ms Parsons and her son are entirely to be expected when offences of such seriousness have been committed. Mr Connolly has caused Ms Parsons and her son significant harm, harm which was entirely foreseeable, harm which is both physical and psychological. This was a most serious series of assaults. He punched Ms Parsons twice, he squeezed her throat, he tried to pull her son away from her. It is worth noting, as I have already, how vulnerable the young boy was, being only 14 months of age. It is not an exaggeration to say that Ms Parsons’ life has been changed fundamentally because of the offender’s illegal conduct.

10. As a result of his behaviour he has now pleaded guilty to two offences. One is an offence, as I mentioned, under s 112(2) of the Crimes Act, an offence of aggravated break and enter, and commit serious indictable offence, the serious indictable offence being the infliction of actual bodily harm and the circumstance of aggravation being that he knew that there were people inside. The other offence is an offence of common assault relating to his assault on Ms Parson’s son. The first matter carries a maximum penalty of 20 years with a standard non-parole period of five years. The second matter carries a maximum penalty of two years. I have taken into account both the maximum penalties and where appropriate the standard non-parole period. My reasons for not imposing the standard non-parole period for the more serious matter appear in these remarks on sentence.

11. Remarkably no one has any explanation for why the offender did what he did, certainly not the offender himself and no expert opinion has been offered as to why the offender would do what he did. He described the events of Father’s Day this way. He went to his brother-in-law’s place where he had a lot to drink. He and his partner had a disagreement over his behaviour and so he left. He says that he has no memory of being inside the house and the next thing he can recall is being arrested. Of course self-induced intoxication is not a mitigating factor and it was not relied on by the offender or his counsel Mr Krisenthal. It is important to emphasise that fact however.

12. The offender’s background was somewhat troubled. His father had his own troubles with drugs and alcohol, his mother did not want much to do with him, and so he was raised by his grandmother. At eleven he went to live with his mother but she abandoned him when she chose her boyfriend over her children. He was introduced to drugs and alcohol from an early age and has had troubles with being violent in the past. He left school in year 8 because of his violence. He left TAFE because he was violent as well.

13. He started misbehaving to the extent that he was committing criminal offences as a child. Eventually he ended up in juvenile detention for five months at the age of seventeen. In his evidence today he said that this had a big effect on him. In effect he turned his life around on his release. He got a job. He started a new relationship with his present partner Ms Elisa Byfield, with whom he has had two children. He candidly admitted that he did not stop using drugs immediately upon his release but stopped using soon afterwards. He had regular and steady work up until his arrest, and indeed he was planning on getting his truck driver’s licence in the week after his arrest to get a promotion at work.

14. A reference from his employer was tendered today and his employer, who has watched him over the past few years, expresses the opinion that the offences that are described are out of character. Perhaps they are out of character when compared to the offender’s recent behaviour, after his release from juvenile detention. But he has, it is recognised, had troubles with violence in the past.

15. The offender pleaded guilty to these two offences at the earliest opportunity and so the sentence I impose upon him will be 25 per cent less than it would otherwise have been, to reflect the utilitarian values of the pleas.

16. No one could possibly underestimate the seriousness of these offences. As Ms Parsons recognised in the victim impact statement she was entitled to feel safe in her own home. We all are. And when our homes are invaded, as the offender did, serious punishment must follow.

17. It is to be noted also that one of the offences, the aggravated break and enter, occurred in the presence of a young child. Of course the assault on that young child involved him being the victim, so that is not an aggravating factor. But as I have said earlier the fact that both offences occurred in the respective victim’s home is.

18. The evidence would suggest that the offender has been a good father to his two children. He, in his evidence, expresses his concern about the impact on them of his incarceration. Unfortunately hardship to spouses and children is commonplace when parents and breadwinners are sent to gaol. It is, I have to say, somewhat ironic that the offender is worried about his children when he has harmed the child of another.

19. The offender expressed his remorse in evidence today. I accept it as genuine. I accept that he is motivated upon his release to ensure that he never acts this way in the future. The difficulty of course in that intention is that without an explanation as to why he did this in the first place it is hard to know what changes need to be made so the offence is not repeated.

20. The obvious change that the offender has said that he will make is that he will not drink again, not even drink at all. Although as I said before, self-induced intoxication is not a mitigating factor, it is relevant to the offender’s prospects of rehabilitation. It would seem that the prospects of him avoiding re-offending are closely related to the prospects of him avoiding drinking. He does have a job offer for when he is released from custody but given the seriousness of his offending that will not be for some time.

21. I will make a finding of special circumstances in this case. Given the unexplained offending I am satisfied that the community will benefit from an extended period of supervision of the offender on parole.

22. I sentence the offender as follows. For the common assault appearing on the s 166 certificate, I impose a fixed term of imprisonment of 18 months, to date from the day of the offender’s arrest, 6 September 2015. That is a fixed term because of the sentence I will now announce. For the offence of aggravated break and enter and commit serious indictable offence I set a non-parole period of three years with a head sentence of six years to date from 6 September 2016. Thus the overall sentence consists of a period of imprisonment of seven years with a non-parole period of four years. His non-parole period will expire on 5 September 2019, on which day he is eligible to be released to parole.

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Decision last updated: 22 March 2018