R v Coombes

[2019] NSWDC 295

District Court

New South Wales

Medium Neutral Citation:	R v Coombes [2019] NSWDC 295
Hearing dates:	23 May 2019
Date of orders:	23 May 2019
Decision date:	23 May 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	You are convicted. You are placed on a community correction order for 12 months. The community correction order is subject to the following conditions: The offender must not commit any offence. The offender must appear before court if called upon. The offender must submit to supervision by a Community Correction officer. The offender is to participate in a rehabilitation program or to receive treatment. The offender is to abstain from the use of illicit drugs. The offender must perform 120 hours of community service work; and The offender must report to the Wollongong Community Corrections Office within 5 days of this order.
Catchwords:	CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence SENTENCING — Penalties — Community Correction Order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	R v Moon [2000] NSWCCA 534 R v Pullen [2018] NSWCCA 264 Yardly v Betts (1979) 1 A Crim R 329
Category:	Sentence
Parties:	Regina (Crown) Aubrey Coombes (Offender)
Representation:	Solicitors: Ms A Kerr (Crown) Ms E Parks (Offender)
File Number(s):	2018/00265472

Judgment

INTRODUCTION

1. Aubrey Coombes appears before me for sentence, having pleaded guilty to two charges, namely aggravated enter dwelling with intent to commit serious indictable offence, contrary to s 111(2) of the Crimes Act, which carries a statutory maximum penalty of 14 years imprisonment; and assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act, which carries a statutory maximum period of five years imprisonment. She has asked me to take into account one matter on a form 1 and when I announce the sentence I will have taken that matter into account.

2. The maximum penalties are an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it.

PLEA OF GUILTY

3. The offender at an early opportunity entered a plea of guilty to the matters and is entitled to a discount of 25% and I so allow that discount in relation to the sentence that I intend to impose.

AGREED FACTS

4. Contained in exhibit 1 at tab 2 is an agreed statement of agreed facts which reads as follows:

“The victims, Kay and Dimche Petrovski are married, however, at the time of these offences they were residing at separate locations due to relationship issues which they were trying to resolve. Dimche Petrovski was residing in a granny flat at the rear of 29 Poulter Street, West Wollongong. Both victims know the offender as they are friends with her aunt.

During the morning of 28 August 2018 Kay Petrovski was at her home and received a photo message on her Facebook Messenger account from the offender. The photo was of the victim’s cat with the hand of a female in the background. This photo was taken at the home of the victim’s husband. Several abusive exchanges were then sent between the victim and the offender. The victim then attended the workplace of her husband in Engadine to ask him about the photo.

About 1pm the victim and her husband returned to the residence of Dimche Petrovski at West Wollongong. They talked for some time then had a nap in the bedroom. They woke up to loud banging on the front sliding door. They could also hear yelling and recognised the voice of the offender.

The sliding door was closed at the time and the offender opened it.

In the messages earlier that day between the offender and Kay Petrovski, Kay Petrovski had told the offender, ‘If you are an item come to his in half hour, we will be there all day’.

The victim heard the sliding door being flung open. The offender then ran into the bedroom and screamed at the victim, Kay Petrovski, saying, ‘I’m going to fucking kill you’. Dimche Petrovski yelled at the offender to stop. (Aggravated enter with intend to intimidate knowing person present)

The offender then threw a mobile phone at the victim, Kay Petrovski, which hit her on the face. As a result of this the victim suffered a bruise and lump to her forehead near her left temple. She also had an enlarged top lip and a cut on the inside of her lip. Dimche Petrovski then ran around the bed and grabbed hold of the offender to keep her away from his wife. (Assault occasioning actual bodily harm)

The offender was trying to reach the victim and as Dimche Petrovski was trying to pull the offender away he received scratches to his face. (Form 1 - assault occasioning actual bodily harm)

Dimche Petrovski kept hold of the offender and moved her to the lounge room. He then let go of her and the offender left the premises. The victims then contacted police”.

5. On 29 August 2018 the offender was arrested at her premises located at Primbee and conveyed to Wollongong Police Station. She agreed to participate in a record of interview and admitted to attending the premises of Dimche Petrovski. She confirmed there had been abusive messages between herself and the victim, Kay Petrovski, during the day. She told police she may have thrown a lamp and a mobile phone while she was in the premises. She told police she knew the victims were at home at the time and she could see Kay Petrovski’s bag inside the premises and her cat out the front.

OBJECTIVE CIRCUMSTANCES

6. The general sentencing principle is that break and enter has long been regarded as a serious crime by the legislature and the degree of criminality involved should not be under rated by sentences. General deterrence is a particularly important sentencing consideration for break and enter offences. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court: R v Moon [2000] NSWCCA 534 Howie J at [81].

7. The agreed facts disclose that there was goading on the part of the victim and the offender. The victim had sent a message to the offender conveying that she had reclaimed the prize of her husband and daring the victim to come to their house to show her the prize and spurn the offender. The offender acted under high emotion and with irrational thought to this taunting. She attended the premises and entered through an unlocked sliding door. She did not break and enter in the traditional sense. Nothing was broken and entry occurred during daytime. The offender was within the premises for a short time before voluntarily leaving the premises. In my view the objective seriousness of the offence is at the low end of the scale.

8. In relation to the assault occasioning actual bodily harm the offender in a highly charged state, and seeing the prize reunited with his wife, threw her mobile phone at the victim, it connected and the victim suffered a bruise and lump to her forehead. The assault was of short duration with one action only. The resultant injuries were minor and at the lowest of the scale. I assess the objective seriousness at the low end of the scale.

SUBJECTIVE CIRCUMSTANCES

9. Ms Coombes is 24 years of age and is in receipt of a Newstart payment of $540 per fortnight and resides at her father’s property at Albion Park. She and her father advised the author of the psycho‑social assessment report that she is in a granny flat at the rear of the property affording her a degree of independence and yet allowing access to support from her father if required.

10. She is undertaking a training course with Quality Training College in hospitality at Warilla. She is enjoying this course and is committed to completing the training.

11. She enjoys a strong and supportive relationship with her father, Mr Adrian Coombes.

12. Ms Coombes grew up in the Illawarra District, her parents separated when she was quite young and a pattern of shared care developed. She described feeling close to both parents and during her early life she enjoyed a positive relationship with each. Ms Coombes described difficulties developing in her relationship with her mother in late childhood when it became more apparent to her that her mother had a drug problem. The effects of her mother’s substance abuse and instability were ameliorated by her father remaining a very solid and stable presence in her life.

13. Ms Coombes reported that she started to act out in adolescence and on a couple of occasions was suspended from her high school. She said she was prescribed the antidepressant Prosac by a local GP when she was 14 and also had an overnight hospital admission about this time when she took an overdose of these prescribed tablets.

14. She left high school in 2010 when she was 15 after completing her school certificate. For a number of years she appears to have been very directionless and unmotivated perhaps with untreated depression. Since leaving school she has done little work but has completed a Certificate III in individual support to enable her to work in either aged care of disability sectors. At this stage she has decided not to work in these occupations.

15. In 2016 she commenced a 12 month volunteer program assisting with transporting clients to employment workshop venues. She is currently working toward qualifications which will enable her to work in the hospitality industry. She has apparently completed eight weeks of an 11 week training program and is about to commence a work placement, perhaps three days a week at the Warilla Bowling Club.

16. Ms Coombes advised the author that she used marijuana and alcohol during her adolescence but avoided more serious substance abuse until later in her life. She told him that in 2017 she was going through a particularly difficult time, was unmotivated, depressed and bored and decided to use ice which her mother had in her possession. She said that she quickly developed a habit after this and it remained a problem for her until her own imprisonment in late 2018 after breaching conditions of her bail.

17. She reported that she was in custody from 18 December 2018 until 30 January 2019. She said she has not used ice since her release and does not feel any urge to use the drug.

18. In relation to the offending she said that she was angry at the victim as she also had allegedly had an affair with her aunt’s boyfriend so it seems she decided to “get back” at the victim and punish her by sending her a photo which depicted the victim’s cat and would make her angry and jealous as it indicated that she was with the victim’s partner at their house.

REMORSE

19. She told the author of the report that when discussing her feelings about what happened she said, “I’ve had plenty of time to look back at my actions and I know it was unacceptable behaviour and I’m sorry for what I did”. She continued, “Since the offence I haven’t had any contact with the victim and I understand I can’t go near her nor do I want to. I’ve also completely stopped substance abuse”.

20. I have before me genuine evidence of remorse and contrition on the part of the offender.

PROSPECTS OF REHABILITATION

21. Both she and her father indicated to the author of the report that her experience of brief incarceration earlier this year had a profound effect on her and as advised she appears to have been able to remain drug free since this time. She has almost completed a course of study which will hopefully provide her with a career in the hospitality industry and it is hoped that her work placement due to commence later this week will lead to permanent work.

22. Her father remains a very stable presence in her life and he is able to offer ongoing, affordable housing in a granny flat at the rear of his Albion Park property.

23. It would appear that the slamming of the gates has broken the chain of causation. Arrest, imprisonment and swift prosecution are relevant to the concept of specific deterrence.

24. Time in custody and what a person does thereafter assists a sentencing judge in making findings about rehabilitation. She is now drug free.

25. In the sentence assessment report dated 21 May 2019 she has been assessed as a medium low risk of re‑offending. In my view she has good prospects of rehabilitation.

PURPOSES OF SENTENCING

26. One of the major purposes of sentencing is community safety. The Crimes (Sentencing Procedure) Act 1999 was amended on 24 September 2018, the purpose of the amendments was to improve the availability and nature of community based sentencing options to protect community safety by reducing offending, to reduce the number of offenders serving short prison sentences and to get a greater number of appropriate offenders on community based supervised sentences with conditions tailored to address their offending behaviour and criminogenic needs. The new sentencing scheme was considered in the decision of R v Pullen [2018] NSWCCA 264, Harrison J delivered the judgment which was agreed to by Johnson and Schmidt JJ. At [84] he said:

“Section 66(1) makes ‘community safety’ the paramount consideration. The concept of ‘community safety’ as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community”

27. At [89] his Honour went on to say:

“Community protection may be best served by ensuring that an offender avoids gaol. As the second reading speech makes plain, evidence shows that supervision within the community is more effective at facilitating medium and long term behavioural change, particularly when it is combined with stable employment and treatment programs”.

28. In Yardly v Betts (1979) 1 A Crim R 329 King CJ at 333 said:

“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future the protection of the community is to that extent enhanced.

To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations."

29. The sentence I am about to announce is one that in my view ensures the protection of the community in inducing or assisting the offender to avoid offending in the future, thereby enhancing the extent of the community protection.

ORDERS

1. You are convicted. You are placed on a community correction order for 12 months. The community correction order is subject to the following conditions:

1. The offender must not commit any offence.

2. The offender must appear before court if called upon.

3. The offender must submit to supervision by a Community Correction officer.

4. The offender is to participate in a rehabilitation program or to receive treatment.

5. The offender is to abstain from the use of illicit drugs.

6. The offender must perform 120 hours of community service work; and

7. The offender must report to the Wollongong Community Corrections Office within 5 days of this order.

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Decision last updated: 04 July 2019