R v Craig

[2022] NSWDC 539

District Court

New South Wales

Medium Neutral Citation:

R v Craig [2022] NSWDC 539

Hearing dates:

24 October 2022

Date of orders:

28 October 2022

Decision date:

28 October 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [96-99]

Catchwords:

CRIME - Violent offences - Detain for advantage - Circumstances of aggravation

CRIME — Domestic violence — Stalking or intimidation

CRIME — Drug offences — Possess prohibited drug

CRIME — Summary offences — Custody of knife in public place or school

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases Cited:

Sutton v R[2016] NSWCCA 249
R v Smith (1987) 27 A Crim R 315
R v McNaughton (2006) 66 NSWLR 566
Veen v The Queen (No2) (1988) 164 CLR 465
Bugmy v The Queen (2013) 249 CLR 571
R v Millwood [2012] NSWCCA 2
Callaghan v R [2006]
R v Alferlink [2021] NSWDC 473

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ

Category:

Sentence

Parties:

Rex (Crown)
Craig (Offender)

Representation:

Cranney Counsel for the offender

Clark Counsel for the Director of the Department of Public Prosecutions.

File Number(s):

2021/00085642, 2021/00261186, 2021/00261328

Publication restriction:

Unrestricted

JUDGMENT

1. Adam Lance Craig (“the offender”) appears for sentence in respect of 6 matters charged across 3 indictments, and a further 10 matters are to be taken into account by way of the form 1 procedure.

2. The charges and form 1 matters are set out in a table at the end of these reasons. That table also indicates the date of the offending, the maximum sentences, the assessment of objective seriousness of each of the offenses, and the indicative sentences, both before and after the 25% discount.

3. The offending period commences on 6 March 2021, which was the beginning of communications with Dain Mavin which led to the intimidation charge on indictment. The offender had been released on parole on 27 September 2020 in respect of a sentence of armed robbery; the term was 5 years to date from 16 February 2019 and expiring on 15 February 2024. The most serious offending being sentenced occurred on 16 March 2021. He has been in custody since his arrest on 26 March 2021 to date. The offender’s parole was revoked on 7 April 2021 and the sentence was backdated to commence on 26 March 2021. The entire time in custody is thus also attributable to the revoked parole period. The matter on indictment of pervert the course of justice and its 9 Form 1 matters all occur whilst in custody. The stand alone matter concerning Dain Mavin occurs in the 20 days prior to arrest.

4. A question arises as to when to commence the sentence; there will also be a question as to special circumstances, and as raised in submissions, in the particular circumstances of this case, whether, if not prohibited by s68, an ICO should be imposed.

5. In regard to the form 1 procedure it is important that the focus remains on the principal offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrents and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

6. As to the maximum sentences identified in the schedule, I take them into account as a legislative guidepost reflecting the view of the legislature as to the seriousness of the offending so as to assist me in arriving at the appropriate sentence. None of the offences have a standard non parole period.

3 charges from 16 March 2021

7. The offender had known the victim for about four weeks at the date of offending and they had a brief sexual relationship.

8. On the date of the offending 16 March 2021 the offender sought to contact the victim unsuccessfully and was told by the victim’s sister not to call.

9. Undeterred the offender attended the premises bashing on the front door demanding to talk to the victim and was told she did not want to do that. He said he was going to kick the door in and take her. At one stage the victim went outside and spoke with the offender.

10. The victim must have gone back inside because the offender then after that said he is going to kick the door in and take her. The victim’s sister opened the door and told the offender in no uncertain terms to go away. He forced his way in slamming the door against the wall and making a hole in the wall. He pushed past the sister and went to the victim. This is the aggravated enter premises with intent charge to commit serious indictable offence (take and detain); the matter of aggravation is knowing persons were on the premises.

11. Next the offender grabbed the victim by the upper body and pulled her up, and placing his hands on her shoulders walked her to an motor vehicle outside. This is the take the detain charge.

12. The offender then forcibly pushed the victim into the front passenger seat and sat behind her. The victim begged him to take her back. He said he would kill everyone. He said he would kill her family and bash the sisters face in with a hammer. A neighbour tried to stop the car leaving but it drove away. It was driven by an unknown male.

13. The vehicle stopped and the offender and victim got out with the offender forcing the victim, giving the driver $20 who then drove away. The victim repeatedly asked to be taken back to her sister’s.

14. The offender, who had known the victim for all four weeks, said to the victim that if the victim did not love him, he would kill everyone and himself. He said he had secateurs in his pocket and would slit her throat and then his throat. The various threats to kill and harm both the victim and others make up the intimidate charge.

15. The agreed facts record that at this point the offender appeared to become somewhat remorseful. The offender did not have his mobile phone and told the victim he would get her a lift home. The offender went to use a payphone and whilst doing so the victim ran away and hid in a nearby store. She sought help from staff and asked them to call the police and the offender fled.

16. On 26 March 2021 police noticed the offender on patrol and arrested him. Upon being searched he was found to have 1.72 g of methylamphetamine and a knife which make up the form 1 charges, which are to be taken into account when sentencing for the aggravated enter dwelling s111 charge. Those Form 1 offences are minor offences as indicated by their max sentences of 2 years, and further are low in objective seriousness with the facts doing no more than making out the offences, and they will be taken into account accordingly.

Objective seriousness of these 3 offences.

17. No exact time frame is given for the offending, but the facts read as if, and I find that, the offending occurred in a relatively short period of time, and the distance covered in the car of the take and detain charge appears short. On an objective basis the offender has repeatedly made demands upon the victim to make herself available to him and has been rebuffed. Knowing she does not want to be with him he then commits these offenses. Whilst the enter premises charge is not break and enter it was hardly an open door in the sense that it was only open for the purpose of telling him to go away and that he then forced his way past the door and the sister. The serious indictable offence he intended to commit was the take and detain, which is a serious offence the maximum penalty well in excess of five years, namely 14 years. There is also the force of the entry with the hole being made in the wall. Yet the offending is clearly not well thought out or planned, and the offending concludes with the offender apparently, and I find, remorseful, showing that he realised the wrongfulness of what he is doing, at least to some extent, and he ceased the offending conduct. This remark is applicable to each of these three matters. I consider this offence to be towards the mid-range.

18. The take and obtain following the same rebuffed efforts to contact the victim. Contrary to his stated intention to take the victim to an NA meeting, all he did when he detained her was to intimidate her. The taking and detaining involved the use of force, albeit it modest, the removal from her home and placing her in the car in what must have been frightening circumstances. It was however seemingly short lived and came to a conclusion by the offender seemingly recognising the wrongfulness of his conduct. I consider it to be in the low range.

19. As to the intimidation it involves the threat of the use of a weapon, involves threats to kill, it occurs when the offender is in the immediate contact of the victim, and it arises in the motor vehicle following earlier demands upon her to do as he commands. It is short-lived and ends with the offending seemingly remorseful. Again, it would have been very frightening and very intimidating. I consider this to be in the mid range.

26 March 2021

20. The offender is served an interim ADVO; the conditions include not to harass or contact, unless through a lawyer.

23 April 2021

21. The offender telephoned the victim at 6:52pm from custody. They discuss the victim’s ex-partner getting bail on unrelated matters. Then the offender goes on to try to talk the victim into saying (along the lines of) she got in the car after he did, he tells her she was drunk and smoking heaps of bongs at the time, you don’t remember nothing, I called to pick you up for AA, I didn’t break into the house when I got there, you asked me to bring you food

22. In the next phone call at 7.52pm from offender to victim the offender says “if I get found guilty I’m doing 5 years babe”. They then discuss a different chain of events where she was a willing participant. The conversation includes the offender saying “I didn’t make you, you came with me, you started freaking out so I called you a taxi and you ran into the shop.” Like you wanted to be with me” “you were drunk, you didn’t know what you were doing”

Objective seriousness

23. This offence as provided for by s319 relevantly is to do any act “intending in any way to pervert the course of justice”. The above facts are largely a series of suggestions as to a story to fabricate. It amounts to a conversation whilst in custody. Whilst it is plain the offender is pressing for the victim’s agreement the victim seems largely to be simply humouring the offender though that does extend to her making suggestions for the fabrication. It was a conversation from custody and the prospect of this proposed act to pervert the course of justice actually being put into place without detection appears minimal particularly as the conversation was recorded. There does not appear to be a great deal of coercion being brought to bear on the victim. The offending conduct is unsophisticated, ill conceived, unlikely to succeed, and rather unrealistic. In my view this is a matter low in objective seriousness.

Form 1 matters

24. There are a range of Form 1 matters to be taken into account with this matter, a total of nine. Six of them are contraventions of an AVO. The AVO in question was made on 26 March 2020 one, the date of the arrest of the offender. It included the usual conditions including not to harass and also not to contact the victim in any way unless through a lawyer.

25. Dealing with those Form 1 matters in the order in which they appear in the Form 1 the facts are as follows. For the first contravention the offender calls the victim 194 times between 5:47pm on 23 April 21 and 12:21pm on 22 May 2021. They actually spoke 8 times, discussing their relationship, and letters and poems the offender had sent her. The offender used a false name for the victim whilst talking to her. The criminality in this offending is the flagrant disregard for the order. Based on the facts as to what was discussed it cannot be found adverse to the offender that those eight calls caused her any distress. The fact that 186 calls did not result in a conversation does suggest that she was not answering his calls. That volume of calls, approximately an average of some six calls per day, suggest a determination on the offender’s part to maintain contact when it is forbidden. Nevertheless, overall I think this is low objective seriousness.

26. The next Form 1 matter is also a contravene AVO matter. Four letters and one birthday card were sent to the victim. The content is said to be sentimental. Again, I consider this low in objective seriousness giving the content with the criminality again being necessary breaching of the order to make the offence.

27. The next Form 1 is another count of perverting the course of justice. This is based on one of the letters sent by the offender to the victim stating, “Please look after you baby, its hard hearing of pain Dain and co continue causing, One stat dec and I’m out baby girl”. As with the other pervert offence there is a marked degree of a lack of sophistication if not simply an example of unrealistic expectations. Again, I would consider this low in objective seriousness. It is also in effect a continuation of the earlier offence.

28. The next two Form 1 matters are the next contravention matter and the final Form 1 matter of a third pervert count. Between 29 April 2021 and 26 May 2021, the offender contacted Ebony Roberts 63 times and spoke to her most of these times. The offender used Roberts to communicate with other people including the victim via three-way phone call. The victim engages on 9 calls. For the same reasons as above this is low in objective seriousness.

29. In the course of these calls the offender was urging Roberts to tell the victim what to do to fill out a stat dec to give a false account of the offending. He offers Robert’s money and drugs and other benefits for her participation. For the same reasons as above this too is low in objective seriousness.

30. Next is another contravention, this time through an intermediary. Through another inmate contacting that inmate's girlfriend to ask her to contact the victim he seeks to communicate with her, and the message is passed on. Again, this is low being the bare minimum of contact though there is a slight element of harassment to it as well. The contact is diluted coming as it does through no less than two intermediaries.

31. The next Form 1 is to threaten to record or distribute an intimate image where in a manner suggesting he is caring for her but really making a thinly veiled threat and in order to have her contact him he tells her how “the boys” want to distribute sex videos of her to her child’s school and he says he won’t let them do that “but you need to contact me”. Notably the offence here is to threaten to distribute intimate image. The facts seem to assume that the images do in fact exist. In all the circumstances of this case and the criminal elements involved in it I consider the matter to be more serious and to be approaching mid range objectively.

32. The remaining two Form 1 matters are contravene matters. The first is of making 12 calls within six days with connection being achieved on only one occasion. The parties spoke for two minutes 37 seconds. This is low in objective seriousness. The next contravention is on 20 July 2021 when the offender caused his aunt to send a text to the victim. The offender had asked his aunt to tell the victim he was starting his chemo and to say that he wished her well and to ask if he can contact her. It is a very polite message sent by a third party intermediary. It nevertheless is sufficient to make out a further breach and I assess it as low in objective seriousness.

33. The facts record that the victim soon after the offender's arrest was willing to communicate and happy to do so but after a while the repeated nature of the contact made her uncomfortable and overwhelmed and she wished to cease the contact with him.

Third indictment

34. The remaining matter is a further matter on indictment of intimidation. This intimidation is of Dain Mavin and commences prior to all the other offending in the period 6 March to 26 March. The victim here is the former partner of the other victim. They engage in text messaging which amounts to threats from the offender and abuse from the victim. That was on 6 March. On 8 March there is more texting with threats this time also from the victim. Subsequently in a two-day period the victim sent the offender 41 text messages which were threatening and abusive. The offender then replies and sends photographs of locations near the victim’s home followed by further threatening intimidating texts.

35. The offender then when talking to police complained about the texts he received from the victim and provided the text messages to the police who decided both parties were sending intimidating texts. It appears the last text from the offender was 27 March when he was in custody and said he was a well-known crime figure and stating unless the Mavin said were Noelene Gibson was, he was dead. This caused the victim to feel scared, threatened and intimidated and the offender has now installed cameras and spotlights on his property and two new dogs.

36. This last offending shows both parties in a bad light. Initially the victim does not seem overly perturbed, though it is not necessary for him to feel fear for the offence to be made out, but it is a factor in determining objective seriousness. It is the offender who contacts the police. The final gambit of the offender to pretend to be someone else raises the stakes however I would maintain the offending has remained in the low range.

SUBJECTIVE CASE

37. The offender is entitled to a 25% discount on his sentence for his early pleas of guilty.

38. The offender relies on a psychological report dated 24 June 2022. The history given is of a 47-year-old indigenous man. He has three younger siblings. The family lived in housing commission in Fairfield. His father was a computer programmer and his mother a stay-at-home mum. There was no violence in the home and his parents did not drink alcohol and he was properly provided for. One sibling had significant health difficulties. The parents separated when the offender was 11. Her new partner spent money on alcohol, drugs and gambling. He was controlling and did not allow visitors. This lasted for two years to the point where neighbours had to give them food.

39. His mother’s next partner when the offender was 12 was also abusive. The mother and partner with the children moved to Western Australia but the partner spent money on drugs and alcohol causing financial problems. The offender rang his father to arrange them all to come home to New South Wales including the new partner. They then lived in housing commission at Minto. The mother’s partner became involved in crime. The mother was abused physically. On one occasion the partner kicked the door in when the children were hiding.

40. The offender left home at 15, initially staying at friends' places. He went to juvenile detention at Reiby when 16. There he was sexually assaulted over an 11-month period. At the Kariong juvenile facility, he was physically abused. He made suicide attempts.

41. On his release he stayed with his father but did not get along with his stepmother and moved back to his mother which he described very negatively. He says whilst his mother was being bashed by her partner another man stabbed the partner causing his death. The offender started to associate with the wrong people and became involved in drugs and criminality which he said gave him a sense of belonging.

37. Of particular relevance to this case is he has never had what he would think of as a real relationship but sees himself as a rescuer of women from abusive relationships. He has two daughters and a son but does not really know them because as he said he has been in and out of jail for the last 30 years. In his evidence at the sentencing hearing his plan on release is to reside with one of his sisters to assist in his cancer treatment.

38. He attended school until year eight and then was educated in juvenile detention. He enjoyed learning.

39. Drug use began with marijuana and alcohol at age 15. Heroin use began at 18 which stopped at age 37. Stealing offenses are significant on his record, presumably to support his habit. On the facts of this case given the possession charge it is obvious that he is still involved with drugs. It is a concern that he maintains those drugs were not for him, a statement that should be viewed with some scepticism.

40. The history given clearly supports a case of a disadvantaged upbringing with evidence of domestic violence and sexual abuse and exposure to substance misuse.

41. There is a concern that of institutionalisation either present or imminent.

42. The offender meets the criteria for borderline personality disorder. He seeks to frantically avoid real or imagined abandonment.

43. The opinion offered is that the ability to regulate his behaviour and exercise good judgment has been significantly impacted by his adverse life experiences. The opinion is that at the time of the offending the offender was suffering a mental health impairment that was clinically significant arising from his borderline personality disorder which significantly impacted on his ability to make informed decisions. Having heard the evidence of the offender, and considered his affidavit, I accept the facts on which the psychologist’s view is based and accept her opinions just set out.

44. It could not sensibly be argued that this is not a relevant matter to take into account. What is a little if not significantly more difficult to factor into the sentence is the broad nature of the statement by the psychologist. Does this mean that every time this person does something against the law it’s due to the reasons just stated? That is the difficulty in sentencing a person such as Mr Craig. Furthermore, even allowing that there is a 100% connection between the offending and his background and state of health there is of course the need to impose a sentence that balances the need for rehabilitation with the need to protect the community. Having considered the matter and having heard the evidence of the offender, and considered his affidavit, I accept the facts on which the psychologist’s view is based and accept her opinions just set out.

45. The report concludes with recommendations for treatment and suggested protective factors. Encouraging signs for the future are said to be his willingness to engage in intervention and his connection to aboriginal culture. Of course, there has been prior well-intentioned rehabilitative steps to only be followed by more offending, and I take that into account also.

46. The offender gave evidence. There was no real challenge to any of this history. He confirmed on oath what he had told the psychologist and also his affidavit that was relied upon. He recently contracted Covid and was bedridden for 17 days and was provided antiviral medication. He said he had a low immune system due to recent chemotherapy having finished a cycle three weeks ago. A point made by the Crown was the paucity of medical evidence. That said there was no challenge to the fact of the direct evidence of the offender having recently undergone chemotherapy nor as to his recent Covid experience. A point for the offender is that whilst he is able to get medical treatment such as chemotherapy in prison, he makes a distinction in saying that he does not receive medical care so that following any cancer treatment he is simply brought back and left in his cell. His evidence was that his recovery depends not just on surgery, or I would add receipt of chemotherapy, but also, he needs diet, support and counselling. All he receives in custody is an escort to and from treatment. He said he was shackled during his treatment and there was no surrounding, what might be called complementary treatment. He gave evidence that he will soon be undergoing surgery where, as he put it, he will be losing various bodily organs which he then identified as bowel, anus, rectum, intestine, and lymph nodes. The medical evidence that was provided is referred to below.

47. He said he had attempted counselling in his time in custody, but it was difficult in remand, he said he never saw the same counsellor twice.

48. He said the best he ever did was when he was at Adele house, and he regrets not staying there longer. He said it gave him a small taste of life where he had to pay bills and played AFL. He acknowledged his lack of social skills.

49. As to the offending concerning Ms Gibson, he said it was that he was not ready for a relationship after 25 years behind bars. He liked the idea of being with someone. He said he made a bad situation worse and showed insight by saying nobody deserves to be controlled and it was wrong for him to try to impose his will. He said he had read some literature about abandonment and about borderline personality disorder and that he had been assisted by his attendances with the psychological report writer.

50. As to future interpersonal relationships he said he was now impotent and would just work on himself. His evidence seemed to amount to saying that he would not want to be in a relationship again. His hope for the future was to be able to be released to connect with his family whilst he can. In addition to his upcoming surgery, he said there was more chemotherapy planned for next year. He would like to pursue some art and create some memories with his sister and family and be productive as best as he can between the cancer centre, the home life with his sister and her family, which includes a husband and children, and counselling.

51. He apologised to his behaviour and recognised the harm to the victim.

52. When he was cross examined it was put to him that he did not continue counselling after leaving Adele house and he said he stuck with his sponsor. He also said he went to a GP because of the bleeding that he was experiencing from his rectal cancer.

53. The offender gave evidence that due to his treatment he was no longer the man he was and was vulnerable to assault by other prisoners which made him a target. In other words, he is in a weakened condition. Whilst offending would not be beyond him if he was to be in the community, physically speaking in my view having considered his evidence which I accept he is now less physically able to offend. Further his most recent attempts at pro social living included a successful period in rehabilitation. That of course is to be countered by his return to offending, but that small success is a factor that favours his current plea. He has expressed remorse acknowledgement of wrongdoing and insight and appreciation of the impact on the victim. He is willing and indeed eager for intervention and what he sees as perhaps his last chance to enjoy or take part in a pro social life with his family. Further, in giving his evidence the offender impressed me as a totally different person from the one represented by his criminal history and background, and long incarceration. The offender impressed as thoughtful and forthright and credible.

54. It is a feature of this case, as noted above, that the offender has been diagnosed as suffering from cancer. The medical evidence in a letter of 11 July 2022 from Prof Goldstein states there is a cure rate of about 60% and that he cannot place a limit on the offender’s life expectancy at this time. That letter states that the offender has rectal adenocarcinoma. He was first seen by Dr Goldstein on 3 February 2022. The symptoms were of rectal bleeding for about 10 months, associated lower abdominal pain and rectal pain. A colonoscopy revealed a fungating distal rectal adenocarcinoma. The letter states the recommendation was initial combined chemotherapy and radiation followed by additional chemotherapy and then ultimately surgery. By July 2022, the date of this letter, he had completed chemoradiation and started neoadjuvant chemotherapy for a total treatment of six months and he is yet to be assessed for operability for removal of the residual disease. So far he has tolerated treatment quite well and has received suitable medication for pain and other side-effects. The letter notes however it is likely that there will be some cumulative toxicity including the risk of mucosal ulceration and bleeding, low blood counts, peripheral neuropathy, and skin changes.

55. The doctor was asked about the issues of receiving treatment in a custodial setting. His answer was this: “the first and most important was the extraordinary long delay in making his diagnosis and the second has been some uncertainty of him receiving appropriate supportive medications for side-effects of the intensive chemotherapy that he is receiving”. That statement combined with the evidence of the offender which I accept that he is now to have surgery and the further statement of the doctor as to cumulative toxicity and the need for appropriate care following major surgery demonstrate that the well-being of this man is not best served by being in custody due to his current health condition. The doctor states the cure rate is 60% which I take to mean that there is a 40% chance of the cancer remaining with presumably a resulting high likelihood of death or at best continuing illness from continuing cancer growth within his body. Most concerning is his description of “extraordinary” delay in diagnosis; the evidence shows symptoms first began at about the time the offender went back into custody, so it can be said that the capacity of the custody environment to appropriately treat the offender has been shown to be lacking.

56. An earlier letter of Prof Goldstein of 3 February 2022 details that up to his diagnosis he was suffering daily from per-rectal bleeding.

57. In his submissions the offender made reference to authorities that it is only in a relatively rare case that ill-health will be a factor tending to mitigate punishment and cited Sutton [2016] NSWCCA 249, and the Crown also referred to Sutton. In that case the medical condition being considered was gallstones. The offender there did not make a submission that imprisonment would be a greater burden due to his ill-health or that imprisonment would have adverse effect on his health, unlike the submission presently being made. The evidence was relied upon for a finding of special circumstances. On the facts of that case the finding was not made. Sutton refers to R v Smith a decision of King CJ reported at (1987) 27 A Crim R 315. The medical condition in that case was AIDS. At p317 his Honour said this:

How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health. The conclusion which I would draw from the evidence in the present case is that there is a substantial risk that the stress associated with a further period of imprisonment will cause some deterioration in the condition which afflicts -5- him. The evidence shows that there are three recognized stages of AIDS sufferers. The stage C sufferer has AIDS antibodies but no symptoms. He may or may not progress to stage Bin which there are symptoms but no danger to life. stage B sufferers may or may not progress to stage A in which the disease is terminal. While in prison the appellant went from C to B. After his release he reverted to C. It cannot be assumed, of course, that further imprisonment will have the same effect. The initial stress may subside with consequent amelioration of the adverse effects of prison. But there is an undeniable risk of deterioration. Counsel for the appellant made a strong plea for suspension of the sentence. I have found the gravity of the. crimes an insurmountable obstacle to acceding to that submission. I am conscious, however, that the stress of worry about his potentially fatal condition may well cause imprisonment to bear more heavily upon the appellant than upon a healthy person. In the interests of the appellant's future, moreover, I am strongly moved to attempt to minimize the risk of deterioration in his health. He had no relevant convictions prior to the subject offending and ought to be a good candidate for parole. I would not feel justified in suspending or reducing the head sentence, but I think the above factors would justify this Court in reducing the non-parole period to one which would be an unusually low proportion of the head sentence. I would allow the appeal for the purpose of reducing the non-parole period to 9 calendar months.

63. A letter from Adele house dated 19 May 2021 asserts the offender demonstrated a willingness in engaging in a rehabilitation program. He maintained the program from 28 September to 28 November 2020 and thereafter regularly attended Narcotics Anonymous.

64. There was an affidavit from the offender deposing that the report of the psychologist is accurate and true. He then sets out in more detail his background. The affidavit was consistent with the other evidence of the offender. In that he records that his early childhood was good but after his parents separated there was regular drug use by his parents and fighting. He first remembers being in trouble in court in 1989. In 1991 he was sent to juvenile detention and suffered abuse by one of the officers which I take to mean sexual abuse. This occurred regularly for 11 months. He is presently represented by solicitors in this regard which I take to mean proceedings are in train or a claim is in train under the national redress scheme or some other tribunal or court.

65. The offender notes the onset of his illness in the period since he went into custody which is consistent with the content of Dr Goldstein’s report. He gives some more detail as to the difficulties of the medical care he says he lacks. For example, he gets taken to hospital in a truck without a cushion remembering that this is a man who is suffering rectal cancer and this is painful. At the time of the affidavit which was August 2022 he had daily rectal bleeds for about a year. He has gone days without showers which I take to be a reference to the lockdowns experienced in prison currently and sometimes has only a bucket to wash in. The offender notes he has been assaulted and had three ribs broken by inmates stealing his medication. He says he has lost 15 kg and is a target. He also notes in this affidavit that seeing the psychologist to prepare the report for this case gave him direction. He did not know about borderline personality disorder. He has read the literature he was made aware of, and he says it makes sense. The counselling has made him realise more than ever the need to make changes. Whilst of course that is refrain often heard in circumstances on sentencing, in the circumstances of this man’s perilous health I am prepared to accept his assertion and intention and give it greater weight than otherwise it may have been given.

66. He says he has not used drugs in years and asserts that the ice on him on his arrest was not for him. Given his behaviour being considered today one must have a degree of caution in accepting this though it was not challenged. He also notes that the only time before Adele house he tried rehabilitation was in 1999 when he survived 89 days of a 90-day program only to relapse. Although that is obviously not a success the fact that he survived 89 of 90 days does show some determination and consistent with the Adele experience, albeit also ultimately unsuccessful in the longer term, does show a willingness on his part for intervention. It perhaps also shows the strength of addiction.

67. The affidavit goes on to tell of the benefit of Adele house. He also addresses the offending concerning Mr Maven and says he thought he was defending the present victim. As to the attempt to pervert the course of justice matter he said he did not realise the magnitude of what he was doing but says he does now.

68. He said he is now impotent and has a colonoscopy bag. He has daily rectal bleeding. He has been assaulted by other inmates taking his medication.

69. On release he plans to go to Wollongong to be with his mother and sister and connect with his nieces and nephews. He says with his consultations with the psychologist and his illness that he realises now more than ever that he has to make changes and things will be different in the future.

Criminal history

70. The offender was born 19 April 1975 and so is now 47. His criminal history begins in the Children’s Court. His first sentence in a Local Court was in 1993 so at the age of 18 for drug offending. That was followed in 1994 by break and enter offences, and in 1996 by motor vehicle theft. His record continues in a fairly regular fashion until 2012 with similar matters but extending also to assault and domestic violence matters with some short periods of imprisonment.

71. In 2012 his offending escalated with armed robbery, and he received a sentence or sentences imposed it would seem in July 2014. As noted above he is presently parole revoked for an offence with a parole period ending February 2024. That sentence was what he was on parole for at the time of this offending. He has been in custody since 2012 to date for all but 9 months

72. There is no doubt that this record is very disadvantageous to the offender. Not only does it deny him leniency but it is plain that he has a history of consistently disregarding the law and committing serious offenses.

Submissions and consideration

73. The submissions for the Crown emphasised both specific and general deterrence and the need to protect the community. Reliance is also place on the need to make the offender accountable and denounce the conduct.

74. The Crown’s view was that all the offences would be around the mid-range of objective seriousness. As can be seen from the table I disagree with that assessment. Some of this offending is clearly not very serious; a matter to be added to the earlier considerations is that apart from the matter concerning Mr Maven and the events of 16 March all the offending occurs when the offender is in custody. The acts of contravention and intimidation occurring remotely from the prison in my view simply do not reach the mid-range.

75. The Crown relied on as aggravating factors the offender’s criminal history. In my view that does not aggravate the offending but rather in line with McNaughton results in the greater emphasis on deterrence, retribution and protection of society; see Veen. That is a consideration I take into account in this matter.

76. I also accept the Crown submission that the offending of 16 March 2021 commenced in the home of the victim though I have already taken that into account in considering the objective seriousness of the matter and do not double count it. I also accept the Crown submission that this occurred when the offender was on conditional liberty. Not only parole but also a community correction order.

73. The Crown acknowledges the plea was at the earliest opportunity so that a 25% discount applies. The Crown also accepted that “Bugmy principles” apply and referred to the fact, relying on Bugmy that a background of alcohol abuse and violence may compromise a person’s capacity to mature and to learn from experience. It is a feature of the persons make up and remains relevant to the determination of the appropriate sentence notwithstanding the person has a long history of offending.

74. That indeed was a mainstay of the offender’s submissions. The offender referred to the report of the psychologist who stated:

Mr Craig’s dysfunctional family life, his negative and difficult interactions with caregivers during his childhood and adolescence and his past history of child sexual abuse, in my opinion, significantly impacted on his social and emotional well-being and his relational health. His intense abandonment fears and inappropriate anger when faced with perceived separation impacted on his ability to have stable relationships. His relationships become intense very quickly and he quickly idealises his lovers demanding their time and affection. However, due to the instability of these relationships and the chronic fear of abandonment, Mr Craig can switch very quickly from rescuer and idealisation to feeling that the other person does not care for him enough and frantic efforts are made to hold onto this relationship. His extreme reactions to interpersonal stressors cause instability in his moods and this regulates his behaviour impacting on his executive functioning schools.

79. The submission is that it is conceivable the offender’s emotional response on 16 March 2021 was causally related to a history of significant and prolonged background of deprivation. My view is that the history is of social deprivation as set out above and further based on the views just expressed by the psychologist, I find that it is more than conceivable and find that there is that causal link between the offender’s background and his state of mental health on the one hand, and the offending on the other. His behaviour towards the victim is totally in line with the view expressed in the above passage.

80. I further accept the submission of the offender relying on Millwood [2012] NSWCCA 2. The point being made at [69] by Justice Simpson is that an offender with a difficult start in life, or I might add a person with a background in meshed with long-term drug abuse as well as the difficult background then common sense indicates that such a person will have fewer emotional resources to guide the behavioural decisions. That is not to say that there is no moral responsibility for such a person, but it does allow some limited mitigation.

81. The result of these considerations is that the moral culpability of the offender is less than it may otherwise have been so that the weight to be given to general deterrence is less. In my view there remains a need for specific deterrence.

82. The offender's lengthy history in custody means it must be that he is institutionalised to some if not a marked degree but so far as possible the sentence should seek to minimise that worsening.

83. The conditions in custody at present are difficult for any prisoner due to the common practice of 23 or 24-hour lockdowns for days at a time. There was not specific evidence as to this, but it has reached a stage where the court could take judicial notice of this as it is something the court is told on at least a weekly basis.

84. The Crown also allowed that the court may find special circumstances, but its ultimate submission was that no such finding should be made. In my view there should be a finding of special circumstances due to the fear of worsening institutionalisation. Further, special circumstances are justified to aid in his medical treatment, and for a person with the chronic history of this offender, some lengthier period of supervision is justified. For those reasons I consider there should be a finding of special circumstances. Further his time in custody is more onerous due to his ill-health and his already experienced susceptibility to Covid, and the onerous situation in custody for him in his condition, further justifying this finding.

85. The purposes of sentencing set out in section 3A. They are as follows:

1. To ensure the offender is adequately punished

2. To prevent crime by deterring the offender and others from committing similar offenses

3. To protect the community from the offender

4. To promote the rehabilitation of the offender

5. To make the offender accountable for his actions

6. To denounce the conduct of the offender

7. To recognise the harm done to the victim of the crime and the community

86. In this case it is the purposes of protecting the community, prevention of crime, specific deterrence, and albeit to a lesser degree due to the offenders lesser moral culpability, general deterrence, and recognising the harm to the victim that require recognition more than the other purposes just identified. The sentence should also promote the offender’s rehabilitation.

87. The above considerations shows that I have found in favour of the applicant subjective case in respect of his background in psychological condition. I have also found that he has shown remorse and acknowledgement of wrongdoing and insight. Indeed, he appears to have shown insight, and I find that he has, into his own condition in a way that has not previously been appreciated by him and for which the psychologist should be acknowledged.

88. The likelihood of reoffending in my view would in ordinary circumstances be medium to high. Although the long-term criminal history and failure to rehabilitate over 30 years of this 47-year-old offender would suggest to the contrary, my view is that there is reason to think that his prospects of rehabilitation are reasonable. If the evidence was simply of his renewed assertions of wanting to change that would be an optimistic statement. But in this case there is support for my view due to his greater insight into his own psych referred to above, and due to his experience at Adele house in 2020 in which regard there was evidence in the form of a letter from that institution speaking favourably of the offender and noting that he transitioned from the program; that is he did complete it and did settle into a routine for the brief time that the offender himself spoke of. Also persuasive still is his precarious state of health. Without over dramatising the situation, it may well be that it is now or never if he wishes to enjoy some semblance of calm and family. In addition to those matters, the loss of 15 kg, and the ill-health of the offender however have the effect that he is less physically able to offend, though it is no guarantee. I would therefore assess his likelihood of reoffending at medium or slightly below. I would assess the likelihood of rehabilitation in a similar way.

89. The offender had been allowed the opportunity to provide an affidavit from the sister as to the future plans of the offender to corroborate an email that had been provided on sentence. The affidavit has been provided and read without objection. It confirms the offender has accommodation with his sister and that she wishes to help and his medical care and reconnect with him. This supports the view as to the likelihood of rehabilitation and reoffending being more optimistic than might be expected.

90. I propose to proceed by way of an aggregate sentence. I have set out in the accompanying table the indicative sentences for each offence both before and after the 25% discount. There is a very good argument for totality in this case. The sheer number of offences, 16 in total, provide a good example of why a linear accumulation of the sentences results in a very disproportional sentence. This is particularly so given that the offending really is a course of conduct; it commences with Ms Gibson’s ex-partner in the lead up to and after 16 March; there is the three offences on 16 March which are really properly viewed as one event in which three offences occur and that has attached to it were to minor matters on the Form 1 for items found upon the person of the offender on his arrest. There is then the attempt to pervert the course of justice which is to be assessed taking into account what really was in effect the conduct seeking to achieve that end namely the communications in contravention of the AVO and threatened to distribute an indecent image. It should also be borne in mind that the extent to which the Form 1 matters add to a sentence must be within the bounds of the objective seriousness of the offending, and also that the Form 1 offences themselves are all of low objective seriousness.

91. There remains a question as to when the sentence should commence bearing in mind that the current parole period that was revoked was backdated to 26 March 2021 and does not expire until 15 February 2024. Callaghan v R [2006] recognises the wide discretion as to whether, and how far, to backdate a sentence. Notably in that case, at [22], Simpson J said the circumstances bringing people to court are far to varied to permit a single absolute rule. Further at [23] her Honour implicitly if not expressly allowed for the possibility that the backdated could be to the date of revocation of the parole, so that the sentences are in effect concurrent.

92. In my view in this case, and particularly given the fact that this offender has been in custody, based on his custody record, for 15 of the last 17 years, has a significant health condition which in my view is not well treated in custody, (and I note R v Smith) and has displayed positive signs of improved understanding of his wrongful behaviour, allowing for some optimism, and also allowing to find that the community will not be as at risk from him as before (for that reason and physical reasons), and also because on the sentence I intend imposing he will still be subject to imprisonment until almost October 2025, the sentence should be taken to commence on 26 March 2021. I note also concerns for the offender’s safety in prison, from assault, as well as Covid related concerns, (he not long ago spent 17 days in hospital with Covid, worsened by his immune reduction due to cancer treatment) in addition to the previously mentioned health issue.

93. The aggregate sentence that I arrive at is, having taken into account the Form 1 matters in relation to the relevant indictable matters and having applied the 25% discount to the indicative sentences as set out on the accompanying table is 4 ½ years. At the date of sentence, the offender has spent 19 months and two days in custody which would leave the remaining term of 35 months. This means that an ICO from the date of sentence would not be prohibited by s68. In respect of the appropriateness of that approach, I consider it is open for the reasons discussed in Alferlink. The imposition of an ICO was raised in submissions and it is necessary that I consider that outcome.

94. By section 66(1) the paramount consideration is community safety. Section 66(2) requires that an assessment be carried out to determine whether the making of an ICO is more likely to address the offender’s risk of reoffending than should he remain in custody. In my view rehabilitation is more likely to occur in the community in this case based on the matters canvassed above concerning rehabilitation and likelihood of reoffending. There is also the fact that as noted above he is now physically less able to offend. In my view should he have counselling of the type that he received from Ms Edwige which he responded positively to by furthering with his own reading and better understanding border personality disorder. His prospect of reoffending will be less if this occurs than if he was to remain in custody. Looking then to the section 3A considerations as required by section 66(3) those considerations already referred to above do not change that conclusion. I would further note that it is of course crucial to observe the paramount consideration of community safety. The offender repeatedly has offended shortly after returning to the community. That is a real concern, but in my view is adequately met and addressed by the factors going to rehabilitation and likelihood of offending addressed above, and in particular his increased understanding of his psyche and his motivation for reasons not present before; namely life-threatening illness, and his reduced physical capacity.

95. The conclusion I reach is that there should be a term of 4 ½ years, notionally to commence on 26 March 2021, but as the term will commence today, then taking the interim period into account, 35 months, to be served by the imposition of an ICO on the conditions set out below.

Orders

96. Of the five offences presented by way of indictment the offender is convicted.

97. Proceeding by way of an aggregate sentence I have indicated the indicative sentences taking into account where appropriate the Form 1 matters and applying the 25% discount to the indicative sentence I impose a term of imprisonment of 4 ½ years.

98. Taking into account the 19 months and 2 days served by the offender I order that the term of imprisonment be 35 months to date from today 28 October 2022 and expiring on 27 September 2025 such term to be served by way of the imposition of an intensive correction order subject to the following conditions

1. that the offender not commit any offence

2. that the offender be subject to the supervision of a corrective services officer and for which person who should present himself to the corrective services office located at Coffs Harbour by no later than 4 November 2022.

3. An additional treatment condition as recommended at paragraph 17 of Ms Edwige’s report, as well as engaging in alcohol and other drug counselling together with all such other treatment recommendations of corrective services.

99. That the offender abstains from all illegal drugs and all prescription drugs not prescribed to him.

TABLE OF OFFENCES

No	H ref	Date	Section	Max Sen	Obj S	Ind Sen
0	Re Dain Mavin	6.3.21-26.3.21	13(1) intim	5y	Low	8 / 6m
1	78134320/006	16/03/21	S 111(2) Crimes Act; enter dwelling with intent	14yrs	Towards mid	24 / 18
2	78134320/002	16/03/21	S 86(1)(b) Crimes Act; take and detain w/I to commit SIO	14yrs	low	24 / 18
3	78134320/003	16/03/21	S 13(1) C9D&PV)A	5yrs +/or 50 pu	mid	12 / 9
Form 1 for above
4	78134320/004	26/03/21	S 10(1) DM&T Act 1985; poss drug when searched on arrest	2y and or 20 pu	minor
5	78134320/005	26/03/21	S 11C(1) Summary Offences Act 1988; poss knife when searched on arrest	2y and or 20 pu	minor
Further Matter
6	1096119490/002	23/04/21	S 319 Crimes Act	DC 14yrs imp LC 2 yrs +/or100 pu	low
Form 1 for above
7	1096119490 / 001	23.4.21-22.5.21	Contravene AVO	2y	low
8	3	29.4.21	Contravene AVO	2y	low
9	4	30.4.21	Do act etc intending to pervert course of	14y	low
10	5	29.4.21-26.5.21	Contravene AVO	2y	Low
11	6	1.6.21	Contravene AVO	2y	Low
12	7	21.6.21	Threaten to distribute intimate image	3y and or 100pu	Near Mid
13	8	20.7.21-26.7.21	Contravene AVO	2y	Low
14	9	20.7.21	Contravene AVO	2y	Low
15	10	29.4.21-26.5.21	Do act etc intending to pervert course of	14y	Low

**********

Decision last updated: 27 February 2023