R v DJD

Case •

[2023] NSWSC 1049

•

01 September 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v DJD [2023] NSWSC 1049
Hearing dates: 22 August 2023
Date of orders: 1 September 2023
Decision date: 01 September 2023
Jurisdiction:Common Law
Before: Wright J
Decision:

(1) Pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW), the back up offence of the offender having his face disguised contrary to s 114(1)(c) of the Crimes Act 1900 (NSW) is dismissed.

(2) Pursuant to ss 168 and 202 of the Criminal Procedure Act 1986 (NSW), the related offence of destroying or damaging property contrary to s 195(1) of the Crimes Act 1900 (NSW) is dismissed.

(3) The offender is sentenced for the offence of entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act 1900 (NSW) to imprisonment for a non-parole period of 2 years and 10 months commencing on 26 September 2022 and expiring on 25 July 2025, with a balance of term of 2 years expiring on 25 July 2027.

(4)   The offender will first be eligible for release on parole from the expiration of the non-parole period on 25 July 2025.

Catchwords:

CRIME – Sentence – Enter dwelling with intent to intimidate in company – Offender found guilty after trial – Young offender – Significant mental health issues – Lack of remorse – Prospects of rehabilitation – Parity – Totality – Additional offences committed in custody – Finding of special circumstances

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 3(1), 6, 16, 18, Pt 3 Div 4

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 55, 56, Pt 3 Div 2

Crimes Act 1900 (NSW), s 111(2)

Criminal Procedure Act 1986 (NSW), ss 166, 167(1)(a), 168, 202

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 90, 92

Cases Cited:

Aslan v R [2014] NSWCCA 114

Carreno v R [2023] NSWCCA 20

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Martinez v The Queen [2022] NSWCCA 12

R v Dunn [2004] NSWCCA 346

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Waterstone v R [2020] NSWCCA 117

Category:Sentence
Parties: Rex (Crown)
DJD (Offender)
Representation:

Counsel:
A Isaacs (Crown)
P Coady (Offender)

Solicitors:
Officer of Director of Public Prosecutions (Crown)
Criminal Defence Group (Offender)
File Number(s): 2020/00160002
Publication restriction: Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify any participants including the offender who were involved in the offending and under the age of 18 years at the time of the offending must not be published or broadcast.

JUDGMENT

Introduction

  1. On 11 April 2023, the offender, DJD, was found not guilty of each of the three counts on the indictment which were:

  1. Count 1, assault with intent to rob being in company and armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW);

  2. Count 2, murder contrary to s 18(1) of the Crimes Act; and

  3. Count 3, entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of special aggravation, namely being in company and being armed with a dangerous weapon contrary to s 111(3) of the Crimes Act.

  1. The offender was, however, found guilty of the statutory alternative to Count 3, entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act. DJD now stands to be sentenced for that offence.

  2. The maximum penalty for the offence of entering a dwelling with intent to intimidate whilst in company is imprisonment for 14 years. There is no standard non-parole period.

  3. When the offence was committed, DJD was under the age of 18 and was under the age of 21 when charged. Entering a dwelling with intent in company is an indictable offence but not a serious children’s indictable offence. [1] In these circumstances, the Court has to decide whether the offender should be dealt with according to law or in accordance with Pt 3 Div 4 of the Children (Criminal Proceedings) Act 1987 (NSW). [2] I shall return to that matter later in these remarks.

    1. See Children (Criminal Proceedings) Act 1987 (NSW), s (3)(1) definition of “serious children’s indictable offence”.

    2. Children’s (Criminal Proceedings) Act, ss 16 and 18.

Back up and related offences

  1. It can be noted at this point that, in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), the offender was also charged with:

  1. A back up offence of having his face disguised with intent to commit an indictable offence contrary to s 114(1)(c) of the Crimes Act; and

  2. A related offence of destroying or damaging property contrary to s 195(1) of the Crimes Act.

  1. It was common ground between the parties that both the backup offence and the related offence should be dismissed. Since the offender was found guilty of the more serious offence for which he is to be sentenced and there are no circumstances which render it inappropriate to do so, the back up offence will dismissed pursuant to s 167(1)(a) of the Criminal Procedure Act. [3] As to the related offence, the evidence at trial established that it was not the offender who destroyed or damaged Ms Howlett’s telephone, accordingly in my view, it will be appropriate to dismiss that charge pursuant to ss 168 and 202 of the Criminal Procedure Act.

    3. In accordance with s 31(7) of the Children’s (Criminal Proceedings) Act.

The facts

  1. In order to determine the sentence in relation to the offence of entering a dwelling house with intent in company, I must make findings of fact as to what occurred. [4] Any facts found must be consistent with the jury’s verdict but, where findings are not necessarily implicit in the jury’s verdict, the facts I find against the offender must be found beyond reasonable doubt but the facts I find in favour of the offender need only be found on the balance of probabilities. [5]

    4. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

    5. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24]-[27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [12]-[14] (Gleeson CJ, Gummow and Hayne JJ)

  2. The Crown helpfully provided a statement of the facts which it was contended had been proved at trial. DJD was tried jointly with Mr Murdoch and both were found not guilty of the three charges on the indictment but guilty of the offence of entering a dwelling house with intent and in company. Mr Murdoch has already been sentenced. The Crown had also provided a statement of facts proved at trial in respect of Mr Murdoch and those facts were not generally in issue in those proceedings. Mr Coady of counsel, who appeared for the offender, submitted that the findings of fact made for the purposes of sentencing DJD should be the same as the findings of fact, with only slight variation, which were made for the purposes of sentencing Mr Murdoch. The Crown did not take a significantly different position but did point to some differences in the circumstances relating to the offender compared to Mr Murdoch.

  3. Applying the principles referred to and having regard to the evidence as a whole as well as the facts as effectively agreed between the parties, I find that what relevantly occurred may be summarised in the following way.

  4. In 2020, Mr Kevin Kourtis lived in a house in Riverstone, NSW. Ms McKenzie and her partner, Mr Sorenson, moved into the house in about March 2020. Between April and May 2020, Mr Kourtis’s girlfriend, Ms Howlett, stayed at the house on a number of occasions. At about this time, Mr Kourtis paid a friend to work on his truck by providing him with small quantities of methylamphetamine, or “ice”. Mr Kourtis and Mr Sorenson kept their drugs on a table in the garage of the house.

  5. In the two months leading up to 23 May 2020, another young person, DPD, attended the house and had disagreements with Mr Kourtis. One disagreement was about the price of ice. At a later date, as a result of another disagreement, Mr Kourtis said he would not let DPD into the house.

  6. On the night of 23 May 2020, three young persons, DPD, SP and the offender were at the offender’s house. On that same night, at around 11:01 pm, Mr Shillingsworth and Mr Murdoch, left Mr Shillingsworth’s house, driving off in Mr Shillingsworth’s Silver Subaru.

  7. On 24 May 2020, at 12:10 am, Mr Murdoch, who was still in the Silver Subaru, received a phone call from DPD which lasted about 70 seconds. At some time not long after 12:10 am, the offender, DPD and SP met up with Mr Murdoch and Mr Shillingsworth at the offender’s house.

  8. The five males then travelled in the Silver Subaru to the streets near Mr Kourtis’s house. CCTV footage captured the Silver Subaru driving down one of the streets without its headlights on.

  9. After the Silver Subaru had been parked on a nearby street, at about 12:31 am, all five males left the car and walked down Mr Kourtis’s street and looked towards his house. They all had the lower half of their faces covered. They gathered in a circle on the roadway outside the house for about 20 seconds before walking together down the driveway towards the front door at about 12:32 am. The front sensor light came on as they approached the front door. DPD was the first person to reach the front door and was holding a shortened .22 calibre rifle in his right hand. SP was carrying a knife. The jury’s verdict requires me to find that the offender did not know about the rifle, which constituted a dangerous weapon, at any relevant time.

  10. The five males gathered around the front door and one of them knocked on the door before proceeding to knock more loudly a second time. Mr Kourtis yelled “who is it?” and one of the males replied, “it’s James, come on man let me in”. Mr Kourtis opened the door a fraction and then immediately tried to shut it again but some of the males pushed against the door, forcing Mr Kourtis backwards, knocking his phone out of his hand and onto the hallway floor in the process.

  11. Mr Kourtis was physically forced down the hallway by the four males other than SP, past the loungeroom which was located immediately to the right, and into the kitchen at the end of the hallway. DPD was still carrying the rifle, whilst another one of the four males was carrying a 30 cm knife but I cannot find beyond reasonable doubt which male that was.

  12. SP went into the lounge room by himself and confronted Ms Howlett who was sitting on a lounge in the loungeroom. SP stood over her, prevented her from calling the police and took about $200 from her wallet. SP remained in the loungeroom and did not enter the kitchen.

  13. Whilst this was occurring in the loungeroom, Mr Kourtis was in the kitchen and one of the four males in kitchen said, “where’s the stuff?”. Mr Kourtis was physically assaulted, which caused two of his teeth to be knocked out and, at some stage, he was also stabbed a number of times by at least one of the four males in the kitchen.

  14. The Crown conceded that it could not establish beyond reasonable doubt who stabbed Mr Kourtis.

  15. At some point, DPD and Mr Murdoch went upstairs into Ms McKenzie’s bedroom. She was inside the room. When they entered the room, DPD was carrying the rifle in both hands, but then dropped it down by his right side. Ms McKenzie said to DPD, “what are you doing?” and he replied, “Kevin’s a dog. Kevin’s a dog. Kevin’s a dog.” At about this time, Mr Murdoch said to DPD, “we have to go”, walked past DPD and left the room. After Mr Murdoch left, DPD threatened Ms McKenzie with the gun and assaulted her. Then he went back downstairs.

  16. Downstairs, Mr Shillingsworth approached Ms Howlett in the loungeroom and asked, “where’s the shit?” She said that she did not know what he was talking about, and he responded, “you better not be lying to me”. As this conversation was taking place, Ms Howlett heard the metal garage roller door open.

  17. Mr Shillingsworth then took the phone out of Ms Howlett’s hand, threw it on the floor, stomped on it and threw it at the wall. He also kicked the TV. SP did not participate in this conduct, although he was in the loungeroom for the entire incident. Ms Howlett heard one of the males, who was not SP, say “we gotta go, the coppers are coming”. Mr Shillingsworth ran out of the house, stepping on Mr Kourtis’s phone as he was leaving which left a bloody shoe print on the phone, with the blood matching that of Mr Kourtis.

  18. Mr Shillingsworth and SP went into the garage through the internal access door.

  19. At some point DPD, who was now downstairs, was heard to say to Mr Kourtis, “wake up mate, wake up mate. Where’s the keys to the ATV? Where’s the keys to the quad?” Another of the males, not SP, yelled “Kev where are the bike keys?”

  20. At approximately 12:36 am, the offender, Mr Shillingsworth, Mr Murdoch and SP ran from the house. They had been in the house for a total of about five minutes. DPD remained inside. Shortly after running from Mr Kourtis’s property, at around 12:37 am, SP walked back down the driveway and re-entered the garage. A short time later, DPD and SP left the premises together.

  21. Once Ms Howlett could no longer hear any noises she went upstairs to check on Ms McKenzie. She was upstairs for a few minutes before she went back downstairs to check on Mr Kourtis who was lying on the kitchen floor. She then returned upstairs and told Ms McKenzie to phone the police and they both locked themselves in the upstairs bathroom until police arrived.

  22. A neighbour, who lived on the same street, had seen the males enter and exit Mr Kourtis’s property. The neighbour contacted police between 12:32 and 12:33 am when he heard yelling from within the house. Police arrived at the house shortly after 12:45 am.

  23. Upon entering the house through the garage, police saw that in the loungeroom the television was smashed, there was a hole in the wall to the right of the television no bigger than a hand and a smashed black smartphone on the floor in the hallway. There was drug paraphernalia and tools scattered throughout the premises. In the kitchen, police located Mr Kourtis on the floor. There were blood smears and debris on the kitchen floor and part of the dining room area. There were broken plates and a hole in the gyprock. There were blood spatters on the kitchen floor and across benches and cupboards. There was also a tooth on the ground and a smashed plate. Police and ambulance personnel tried to revive Mr Kourtis but he died in the kitchen.

  24. After hearing police arrive, Ms Howlett and Ms McKenzie went downstairs. Ms McKenzie identified DPD as one of those involved.

  25. DPD and SP were apprehended by the Dog Squad about 1.3 km from Mr Kourtis’s house, within an hour of leaving the house, and were arrested.

  26. Mr Murdoch and the offender left the house together and Mr Murdoch borrowed the offender’s telephone to call his partner and arranged for her to pick them up from Quakers Hill in a car driven by her friend. A short while later, DJD was dropped off and he returned to his house in Quakers Hill at about 1:38 am. Mr Murdoch, his partner and her friend went to the friend’s house.

  27. Later in the morning of 24 May 2020, the rifle which had been carried by DPD was found on a street in Riverstone.

  28. On 29 May 2020, the offender was arrested.

  29. On 4 June 2020, Mr Murdoch handed himself into police at Blacktown Police Station, where he was charged and placed into custody.

  30. The offender’s fingerprints were located on the exterior of the front door of Mr Kourtis’s house.

Objective seriousness

  1. The offender was a participant, with four other young males, in a violent home invasion. They induced Mr Kourtis to open the front door of his house by deception, with one of them falsely claiming to be a person called James. When Mr Kourtis attempted to shut the door to keep them out, they physically forced their way in, and in so doing DJD left his fingerprints on the outside of the front door. They entered against Mr Kourtis’s will, while it was dark in the very early hours of the morning. The offender, like the others, had his face at least partially covered or disguised with a mask and he was wearing long pants, a hat and a hoodie. The offender and three of the other males forced Mr Kourtis by physical violence down the hallway and into the kitchen. DJD’s presence with the other four young males and their actions at the front door and in the house had the effect of terrifying and intimidating Mr Kourtis and the two other residents.

  2. As to the attack on Mr Kourtis, the Crown acknowledged that it had not proved beyond reasonable doubt that DJD had taken part in stabbing Mr Kourtis and, similarly, Mr Coady accepted that it had not been established on the balance of probabilities that he had not been involved. In my view, both of these positions were correct and, accordingly, I shall sentence DJD on the basis that it was not known whether or not he was physically involved in the attack. [6] In addition, as part of the home invasion, Ms Howlett was robbed in the lounge room by SP and had her telephone smashed by Mr Shillingsworth. Ms McKenzie was confronted in her bedroom by DPD and Mr Murdoch and she was assaulted by DPD after Mr Murdoch had left the room.

    6. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] (French CJ, Bell, Keane and Nettle JJ); Martinez v The Queen [2022] NSWCCA 12 at [51] (Beech-Jones CJ at CL, Macfarlan and Brereton JJA agreeing).

  3. The Crown submitted that the offending involved targeting Mr Kourtis’s premises and therefore involved a degree of planning greater than what might be inherent in the offence for which the offender is to be sentenced. Thus, it was contended that the aggravating factor in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) had been made out. I do not accept this submission. I was not satisfied beyond reasonable doubt that the offender’s involvement in the offending commenced to any significant extent prior to his being with DPD and SP on the evening of 23 May 2020. It was DPD, not the offender, who had had disagreements with Mr Kourtis and who made the telephone call at 12:10 am on 24 May 2020 to Mr Murdoch. Since DJD went in the car with the other four males to the vicinity of Mr Kourtis’s house and, like the other participants, stood in a circle with the others outside the house before barging in with his face partially covered, there must have been some degree of planning and organisation involved. Nonetheless, it did not appear to me that any level of planning that could be attributed to the offender was greater than what was inherent in a joint criminal enterprise to commit the offence of entering a dwelling house with intent to intimidate in company.

  4. Since the offence for which the offender is to be sentenced involved entering a dwelling, it was also inherent in that offence that it occurred in the home of the victim or some other person. Thus, the aggravating factor in s 21A(2)(eb) of the Sentencing Procedure Act was not applicable in the present case.

  5. In the context of determining objective seriousness, the offender submitted that his mental health issues diagnosed by Dr Furst, forensic psychiatrist, in his report of 28 June 2023 (incorrectly dated 28 June 2022) causally contributed to the offending and thus lowered the objective seriousness of the offending. In particular, Mr Coady relied on the following passages from Dr Furst’s report:

“[DJD] had extensive hospital-based treatment for his psychotic illness, including a 9 ½ month period of treatment up until 10 March 2021, that period of hospital-based treatment following on shortly after the offending in question at Riverstone and suggesting he was most likely mentally disturbed/prodromal at the time of that offending.

[DJD] has since displayed more obvious paranoid tendencies and is also prone to auditory hallucinations. Therefore, I am of the opinion it is more likely than not [DJD’s] schizophrenic illness, or at least the prodromal phase of his illness, as at May 2020, contributed to the apparent poor judgement he exhibited and he chose to take part in the offending in question at Riverstone with his co-accused/co-offenders.”

  1. The Crown, however, noted that Dr Furst had recorded, earlier in his report, that after being released on parole in March 2020, the offender was living with his mother and was subject to a Community Treatment Order but he did not tolerate his antipsychotic medication well yet reported that “things were ‘okay’ with his mother whilst he was living with her between March and May 2020”. As to DJD’s drug use at the time of the offending Dr Furst said:

“[DJD] relapsed into using drugs whilst residing at his mother’s house in April-May 2020, which was a combination of cocaine, Xanax and cannabis. He stated he was ‘drinking here and there’ and ‘having pot here and there.’ He denied using ice or heroin at the time.”.

  1. The Crown then, by way of contrast, pointed to the account given by the offender to Youth Justice New South Wales, as recorded in the confidential background report of 11 August 2023, as follows:

“[DJD] disclosed that he was consuming an array of substances including Xanax, Methylenedioxymethamphetamine (MDMA), cannabis, cocaine and alcohol on a daily basis between his release from custody in March 2020 and his incarceration in May 2020. [DJD] reported that during this period, he was consuming drugs with his peers at every available opportunity. [DJD] acknowledged that his continued substance use impaired his thinking and negatively impacted his behaviour over the course of this ten week period.

[DJD] reported that he was ‘on a bender’ at the time of the subject offence and consequently was under the influence of a large quantity of Xanax and an array of other drugs. As such, [DJD’s] substance use appears to be a contributing factor to his offending on this occasion.”

  1. Similarly, the sentence assessment report dated 17 August 2023 noted that the offender believed he would not have committed the offence if he had not been using cannabis at the time and if he was not friends with the co-offenders. In addition, the offender reported to the author of the sentence assessment report that he was not experiencing auditory hallucinations or paranoid and persecutory delusions at the time of the offence.

  2. None of this evidence was challenged by either party. I accept generally Dr Furst’s opinions but note that Dr Furst may not have been fully informed of the extent of the offender’s drug use at the time of the offending or of the offender’s own assessment that his continued substance use impaired his thinking and negatively impacted his behaviour at about this time. Having regard to the evidence as a whole, I was not persuaded on the balance of probabilities that the offender’s schizophrenic illness, rather than the “bender” resulting from drug and alcohol abuse with anti-social peers, was what principally “contributed to the apparent poor judgement he exhibited … [when] he chose to take part in the offending”. Nonetheless, I did accept Dr Furst’s opinion that the schizophrenic illness, probably in its prodromal phase, was one contributing factor, among others, and thus was causally related, to some extent, to the offending.

  3. Mental impairment, including mental illness such as schizophrenia, can affect both an assessment of objective seriousness as well as moral culpability: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (DS) at [96] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ). Nonetheless, the Court in DS continued in that same paragraph:

“However, while a mental impairment ‘may’ affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is ‘a’ causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance[s] that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.”

  1. Notwithstanding other aspects of Dr Furst’s report concerning the offender’s psychiatric conditions to which reference will be made later in these remarks, the psychiatrist’s relevant opinion was quite limited, namely that the offender’s ”schizophrenic illness, or at least the prodromal phase of his illness … contributed to the apparent poor judgement [DJD] exhibited” by choosing to take part in the offending. In the circumstances of the present case and consistently with what was said in DS, to the extent that the offender’s mental illness was only a contributing factor to his “apparent poor judgment”, it was not sufficient, in my view, to render the offending conduct less objectively serious than was otherwise the case. That is not to say, however, that DJD’s mental illness will not have a significant role to play in determination of the appropriate sentence when all relevant factors, including the offender’s subjective circumstances, are considered in the required process of instinctive synthesis.

  2. The Crown submitted in effect that this was an objectively serious version of the offence of entering a dwelling with intent to intimidate in company. Counsel for the offender submitted, based principally on the evidence of Dr Furst, that the assessment of objective seriousness should be less in this case than was found in relation to Mr Murdoch, which was at the lower end of the mid-range for offences of this kind.

  3. There are some slight differences between the offender’s involvement and Mr Murdoch’s involvement in the offending, but they are not of such significance as to lead to a markedly different assessment of the objective seriousness of the offender’s conduct. Furthermore, as already explained, Dr Furst’s opinion that the offender’s mental illness only “contributed to the apparent poor judgement [DJD] exhibited” did not support a finding that the objective seriousness of the offending was reduced to any significant extent, in light of all the factors going to objective seriousness relevant in the present case. In my assessment DJD’s offending fell at the lower end of the mid-range of seriousness for this type of offence.

The offender’s subjective case

  1. The material in relation to the offender’s subjective case included the following:

  1. The report of Dr Richard Furst of 28 June 2023 (incorrectly dated 28 June 2022)

  2. The confidential background report dated 11 August 2023;

  3. The sentence assessment report dated 17 August 2023; and

  4. The offender’s criminal history and related material.

  1. Once again, none of this material was challenged and I accept it.

Background, substance abuse and psychiatric history

  1. The offender is now 20 years of age and had just turned 17 at the time of the offending. [7] He is the sixth born child of his parents and has a total of 11 siblings.

    7. According to the records before the Court the offender was born on 14 May 2003 and the offence was committed on 24 May 2020. Thus, he was 17 years old at the time of offending. Nonetheless, both the Crown and the offender, in their written submissions, contended that the offender was 16 at the time of the offending. Whatever the basis for this discrepancy, it does not appear to me that the offender being just under or just over 17 at the relevant time would make any significant difference to the appropriate sentence.

  2. DJD was born in Albury-Wodonga and lived there until he was 10 years of age. He then moved to Sydney. During his childhood, his mother was a drug user, and his upbringing involved drug use and crime being normalised for the offender. He reported that his mother was poor and at times there was not enough to eat.

  3. His parents separated in 2014 when the offender was about 11 years old. It was also reported to Dr Furst that the house he was living at in Sydney was the target of a drive-by shooting in 2017 and that he was the subject of a random stabbing by a stranger when he was 15 years of age leading to his being admitted to hospital at the time. Prior to being arrested in May 2020, he lived with his mother, his sister Tayla and his brother Riley. Unfortunately, another sister, Jayde, died in January 2021.

  4. As to his education, DJD attended primary school in Albury-Wodonga and he moved to Sydney when he was 10 years old and attended various schools. He did not attend much school in year 8 and later returned to Albury where he attended high school for part of year 9 before dropping out in 2018 when he was 15 years old. The offender was suspended from school on numerous occasions because of physical altercations with other students.

  5. Following his disengagement from school, DJD was employed at McDonald’s and reported that he enjoyed working and was happily doing between four and six shifts a week.

  6. While in the community prior to his involvement in the offending in question, the offender reported that he was not involved in any structured sports or activities and that he spent the majority of his time socialising with his peers and going on “benders”. Amongst his peer group, engagement in anti-social and pro-criminal behaviours was somewhat normalised and sometimes encouraged.

  7. The offender has a history of significant substance abuse and records indicated that he began experimenting with drugs at eight years of age and was smoking cannabis on a daily basis by the age of 11. By the age of 13 he was said to be using “an array of both prescription and illicit substances”. He reported that, at the time of the offending, he was using Xanax, MDMA, cannabis, cocaine and alcohol. Since going into custody in May 2020, he said that he has gone “cold turkey” and that substance use was not an ongoing issue for him. Further aspects of his substance abuse have already been mentioned when considering the objective seriousness of the offending.

  8. As to the offender’s psychiatric history, Dr Furst reported that the offender said that he heard voices on the first occasion when he was 13 years old and this increased in intensity and frequency from about the age of 15. He also has a history of deliberate self-harm dating back to the age of 15.

  9. He entered Juvenile detention in May 2018, when he was 15, for drug supply and related offences. While in custody when he was 16 years old, the offender had his first psychiatric admission to the Austinmer Unit at the Forensic Hospital between 4 November 2019 and 27 February 2020. He was having apparent auditory hallucinations at the time including voices of a commanding nature telling him to harm himself. DJD told Dr Furst that his deliberate self-harm during this period was engaged in because he thought this would make the voices and paranoia go away.

  10. When he was released into the community on parole in March 2020 he was being managed under a Community Treatment Order and his antipsychotic medication was Paliperidone which, according to Dr Furst, he did not tolerate well. Dr Furst also reported that during this period he told the community mental health team that he was hearing voices telling him to kill people, hearing his mother’s and siblings’ thoughts, and feeling paranoid all the time.

  11. Approximately a month after the offender was arrested in May 2020, he was readmitted to Austinmer for a period of 9 ½ months from June 2020 to March 2021 for treatment of his apparent schizophrenic illness. His discharge summary and other medical records indicated that he was diagnosed with schizophrenia and was psychotic at the time of his admission in June 2020. Self-harming behaviour was prominent, usually in response to command auditory hallucinations, including attempting to strangle himself with a towel in the weeks prior to his admission. He was prescribed various antipsychotic medication and mood stabilising medication including Aripiprazole, Paliperiodone, Clopixol, Olanzapine, Chlorpromazine, and Quetiapine.

  12. As already noted, one of his older sisters, Jayde, who was living in Albury died in January 2021 and the offender’s psychotic symptoms increased after that event. He lacerated his throat with a broken CD on 7 March 2021 and was placed in seclusion at that time.

  13. On 9 March 2021, he and another young person at the Austinmer Unit assaulted a male nurse, for which he was charged and convicted of assault occasioning actual bodily harm in company. He was sentenced to a 6 month control order, commencing in September 2021 and expiring in March 2022. In relation to this incident, Dr Furst noted:

“I note [DJD] was placed in seclusion after the incident on 09/03/21. He was reviewed the following morning by a psychiatric doctor, being unable to explain the reasons for the assault. He said he did not know why he assaulted the staff member. He specifically denied experiencing command auditory hallucinations and was not delusional at the time. He was noted to be ‘stressed’, but not overtly psychotic.

[DJD] was then discharged from the Austinmer Unit and was sent back to Cobham the same day, i.e. 10/03/21, with a determination from his treating team that ‘due to the current therapeutic milieu, ward dynamics and staffing levels, the team are unable to currently manage [DJD’s] current violence risk.’”

  1. When assessed on 9 August 2021, DJD stated that his voices “come and go” and that he “picks up on the thoughts of others”. He also stated that he felt paranoid, even when the voices were not present. His mental state examination on this date was reported as follows:

“[DJD] was lucid throughout the assessment period, understanding all questions put to him and answering logically. There [were] no indications of thought disorder and he was not paranoid at the time of assessment. [DJD] was not hallucinating either. His overall intelligence appeared to be below average. He was not suicidal.”

  1. Dr Furst recorded the following in relation to the offender’s mental state examination on 25 February 2022:

“[DJD] presented in much the same manner as he had done in August, being logical throughout the assessment. He was not very expressive or expansive and did not display much emotion. There were no signs of psychosis or severe mood disturbance.

  1. The offender’s current medication is Aripiprazole by way of a 400 mg depot injection every three weeks and additional 5 mg tablets twice daily. Dr Furst reported that the offender stopped taking his medication around May or June 2022 and that he lacked insight into his treatment needs, in that the offender stated that he stopped his medication because he “didn’t need it”.

  2. On 22 May 2023, Dr Furst reported that the offender stated he was feeling “fine”, was sleeping well and denied any recent drug use. Dr Furst reported in respect of his mental state examination on that day:

“[DJD] presented as a muscular 20-year-old male with short-cropped hair. He was logical and coherent and had no signs of acute psychosis. He was not very expansive and was not insightful into his mental illness or personal risk factors/vulnerabilities.”

  1. Dr Furst diagnosed that the offender was suffering from the following mental illnesses or disorders:

  1. schizophrenia;

  2. substance use disorder;

  3. conduct disorder;

  4. personality disorder (antisocial and borderline features).

  1. Dr Furst provided general information concerning the incidence, symptoms and consequences of schizophrenia including, in particular, reduced life expectancy, chronic adjustment problems, discrimination and victimisation.

  2. Dr Furst’s concluding remarks included the following opinions:

“[DJD] requires treatment with antipsychotic medication, having stopped his medication around May-June 2022. He has a pattern of exhibiting disturbed behaviour, aggression and general interpersonal difficulties in both juvenile detention and adult custody and he requires a Forensic Community Treatment Order (F-CTO) to be implemented by Justice Health staff in order to assist his management and behaviour whilst serving his current sentence and in preparation for his transition to the community, whereupon he should be referred to his local community mental health team pursuant to a CTO.

…

He will most likely require continued management in restrictive correctional settings, such as segregation, because of the risk he poses to other people, including fellow inmates….

When [DJD] is eligible for parole, I would recommend assertive psychiatric treatment by way of a Community Treatment Order (CTO) to his local community mental health team …”.

  1. The sentence assessment report noted that the offender had been and was at the time of the report a patient subject to review by the Mental Health Review Tribunal because of his admission to a mental health facility from a correctional centre, by virtue of ss 90 and 92 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

  2. The offender’s deprived and difficult upbringing, involving lack of positive parental support and normalisation of substance abuse and criminal activity, the offender’s abuse of drugs from a very early age and his serious mental conditions, are particularly relevant to assessing his moral culpability, his suitability as a vehicle for general deterrence and the need for specific deterrence.

  3. I accept that the offender’s circumstances which I have outlined in these remarks have the consequence that his moral culpability is reduced as is his appropriateness as a vehicle for general deterrence and this should be reflected in the sentence imposed.

  4. More particularly, in relation to his mental health conditions diagnosed by Dr Furst, some of the relevant principles to be applied in this regard were helpfully collected by Simpson J in Aslan v R [2014] NSWCCA 114 at [33]-[35]:

“33. … The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community’s interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

‘[Principle 1] � 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 ...

[Principle 2] � 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 ...

[Principle 3] � 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 ...

[Principle 4] � It may reduce or eliminate the significance of specific deterrence ...

[Principle 5] � Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public...’ (internal citations omitted, italics added)’

34. It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

35. A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender’s moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2).” (emphasis in original)

  1. As noted already, I accepted Dr Furst’s opinion that the offender’s schizophrenia, probably in the prodromal phase as at May 2020, contributed to some extent to the apparent poor judgement he exhibited when he chose to take part in the offending in question. In this sense, this mental illness was causally relevant to the offending, although not the only or principal cause. The difficulty in the present case is that, while the offender’s schizophrenia, among other considerations, tends to reduce his moral culpability and his suitability as a vehicle for general deterrence, this mental illness and his other diagnosed mental conditions also mean that he presents a greater danger to those around him, whether he is in custody or in the community. As a result, the need for specific deterrence is to some extent heightened and the protection of the community requires particularly serious consideration.

  2. Notwithstanding that conclusion, the offender’s diagnoses provided by Dr Furst, the general information in Dr Furst’s report concerning the issues and problems faced by those suffering from schizophrenia and the offender’s time in custody up to the present established that the offender will experience significantly more onerous conditions while serving any sentence of imprisonment than would be likely to be suffered by other offenders who did not have the offender’s diagnoses and mental health issues. I have taken this into account as tending to mitigate the sentence.

  3. In summary, these aspects of the offender’s subjective circumstances to which I have referred do not point in a consistent direction. Some tend in favour of leniency. Others tend towards a lengthier sentence. I have taken all of these factors into account to determine the sentence that is appropriate.

Criminal history and time spent in custody

  1. The offender has been in juvenile detention and adult custody for much of the time since he turned 15. His criminal history which has resulted in time spent in custody can be summarised as follows:

Offences

Sentence

Start

End

NPP End

Drug supply, cultivation and possession offences and knowingly dealing with proceeds of crime

14 month control order

NPP 7 months

3 May 19

2 Jul 20

2 Dec 19

Assault occasioning actual bodily harm (DV) and stalk/intimidate (DV)

18 month control order

NPP 9 months

18 Jun 19

17 Dec 20

17 Mar 20

After being released to parole in March 2020, on 29 May 2020 the offender was arrested for the offending for which he is to be sentenced and has been in custody since that time. Parole was revoked in respect of the 18 month control order.

While in custody the offender has been sentenced for the following offences.

Assault occasioning actual bodily harm in company

6 month control order

29 Sep 21

21 Mar 22

NA

Reckless wounding in company

2 years 2 months imprisonment

NPP 13 months

22 Jan 22

21 Mar 24

21 Feb 23

Riot and intentionally damaging property

12 months imprisonment

NPP 6 months

21 Nov 22

20 Nov 23

20 May 23

Assaulting a law enforcement officer – 2 offences

8 months imprisonment

NPP 4 months

20 May 23

19 Jan 24

19 Sep 23

  1. The period during which the offender was in custody which was solely attributable to the offence for which he is to be sentenced was calculated as 280 days, from 17 December 2020 to 22 September 2021. I shall take this period into account by backdating the sentence to be imposed by 280 days.

  2. Otherwise, the offender’s criminal history disentitles him to the degree of leniency which he might otherwise have been afforded if he had no prior convictions.

  3. Finally, I have taken into account that the offender was on parole at the time of the offending for which he is to be sentenced.

Remorse

  1. It was not submitted, on the offender’s behalf, that he had shown remorse or accepted responsibility for his actions. This was generally consistent with the attitudes expressed by the offender to the Community Corrections officer who prepared the sentence assessment report. It was also submitted in effect, however, that the lack of remorse should not provide a foundation for a finding that the offender lacked insight and thus that he constituted a greater danger to the community because there had been no expression of remorse. I accept that lack of expressed remorse is not a factor which would lead to a more severe penalty being imposed.

Prospects of rehabilitation and likelihood of re-offending

  1. as to the offender’s prospects of rehabilitation, it was submitted that this was complex because of his mental health conditions and background of substance abuse. It was noted that the offender has access to support from the National Disability Insurance Scheme which will be available when he is released into the community and he has some family connection, for example as outlined in the sentence assessment report, although it was conceded not to be particularly strong. It was submitted that, in the circumstances and if DJD can be properly supported into a medicated and stable form of community life, through a Community Treatment Order and with assistance of the kinds identified by Dr Furst at the end of his report, he has some prospects of rehabilitation.

  2. Taking into account these matters, as well as the offender’s young age and his previous work at McDonalds, I am satisfied that the offender has some prospects of rehabilitation, provided he has the support and assistance outlined by Dr Furst both in custody and in the community, and he can remain abstinent from illicit drugs and free from the influence of anti-social peers. I have taken these matters into account in the offender’s favour, albeit only to a limited extent.

  3. As to his risk of reoffending, the sentence assessment report notes that according to the Level of Service Inventory – Revised assessment tool, DJD has been assessed as a “Medium risk of reoffending”. In all the circumstances, the evidence as a whole does not provide support for a conclusion that the offender is unlikely to re-offend. Nonetheless, I have not imposed a lengthier sentence on that account.

Youth

  1. The offender had just turned 17 at the time of the offending and was thus a “child” within the definition in s 3(1) of the Children (Criminal Proceedings) Act.

  2. As already noted, in this case, the Court must decide whether the offender is to be dealt with “according to law” or in accordance with Pt 3 Div 4 as if the proceedings were in the Children’s Court. [8] In making that decision, the Court must take into account the matters in s 18(1A) of the Children’s (Criminal Proceedings) Act. [9] While counsel for the offender did not concede that the matter should be dealt with according to law, it was acknowledged that there were powerful considerations supporting such a conclusion. In my view, the indictable offence for which the offender is to be sentenced is serious, as demonstrated by its maximum penalty of 14 years’ imprisonment. In the present case, for the reasons I have already given, the particular circumstances of the offence established that it was a serious example of this type of offence, involving a home invasion, carried out in the hours of darkness, by five males who gained entry by deception and used their presence and violence to intimidate the occupants of the house. The offender was 17 at the time of the offending and 20 at the time of sentence and lacked maturity. At the time of the offending, the offender had previously committed the offences to which I have already referred, which were also serious in nature involving violence in a domestic context as well as drug supply and proceeds of crime offending. Furthermore, the offender was on parole at the time of the offending for which he is to be sentenced. Having regard to all of these matters and the circumstances as a whole, I have concluded that the offender should be dealt with according to law.

    8. Children’s (Criminal Proceedings) Act, ss 16 and 18.

    9. The matters specified in s 18(1A) are:

  3. That does not mean, however, that the principles in s 6 of the Children’s (Criminal Proceedings) Act no longer apply. Section 6 requires the Court to have regard to those principles when it is exercising functions under that Act, as in the present case where it is dealing with the offending according to law under s 18(1). The principles in s 6 are:

“(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.”

  1. As was noted in the remarks on sentence in relation to Mr Murdoch, the law recognises the potential for the cognitive, emotional and physiological immaturity of a young person to contribute to their breach of the law. [10] In my view, the offender’s emotional immaturity and poor impulse control as a result of his age, in addition to the other factors already referred to, probably contributed to his offending in this case. In recognition of the capacity for young people to reform and to develop their capacity to conform to society’s norms, considerable emphasis should be placed when sentencing an offender such as DJD on the need to provide an appropriate opportunity for rehabilitation. This may, however, be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity.

    10. See the helpful summary of the applicable principles by McNaughton J (Button J and R A Hulme AJ agreeing) in Carreno v R [2023] NSWCCA 20 at [69]-[70].

  2. In the present case, I have taken the offender’s cognitive, emotional and physiological immaturity into account as mitigating, to an extent, the sentence to be imposed and so that the offender’s prospects of rehabilitation are preserved or enhanced. I have also taken into account that the offender engaged in conduct which could be characterised as grave adult behaviour. In considering the other aspects of the s 6 principles in relation to sentencing children in light of the circumstances of the present case, I formed the view that, where they were significant, they tended in different directions. I have considered each of these principles and factored them into the determination of the appropriate sentence.

Parity

  1. As was noted at the outset, the offender was found not guilty of each of the counts on the indictment, including the most serious charge of murder, and was only found guilty of the less serious alternative offence of entering a dwelling with intent to intimidate in company. He is not to be sentenced for those more serious offences and I have been careful only to sentence the offender for the offence of which the jury found him guilty. DJD, like Mr Murdoch, is thus in a position which is significantly different from that of the three other males involved in the home invasion, SP, DPD and Mr Shillingsworth, who pleaded guilty to the offence of constructive murder and who have been sentenced on that basis.

  2. Mr Coady, on behalf of the offender, submitted that in the offenders’ case the parity principle should apply so that the offender’ sentence should be compared with that of Mr Murdoch. In particular, he noted that the offender, unlike Mr Murdoch, is being sentenced as a child and thus his youth was a feature that distinguished his situation from that of Mr Murdoch. Further, it was submitted that DJD’s mental illness was another factor which differentiated the offender’s case but it was conceded that that consideration “also cuts against [DJD]”. [11] In addition, it was submitted that since the sentence imposed on Mr Murdoch was for a fixed term of three years, and not a non-parole period with a balance of term, that sentence should only be used as a “guidepost” when considering parity and the sentence to be imposed on DJD.

    11. Tcpt, 22 August 2023, p 33(47–49).

  3. The Crown submitted that consideration of parity would result in a more severe sentence in the offender’s case in light of the following:

  1. DJD, unlike Mr Murdoch, was on parole at the time of the offending;

  2. DJD had a longer criminal record than Mr Murdoch and DJD’s history included offences of violence;

  3. The confidential background report noted that DJD saw himself as “one of the leaders among this group” although it was also noted that “the role he played among his peers in relation to the subject offence was not discussed in any detail”, and his role in the offending was greater than that of Mr Murdoch because he was with DPD and SP before and when the telephone call to Mr Murdoch was made by DPD.

  1. The parity principle, which is a norm of equal justice and an essential aspect of the rule of law, requires like offenders to be treated in a like manner and different sentences to be imposed upon like offenders to reflect their different degrees of culpability and any different circumstances. [12]

    12. Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [28] (French CJ, Crennan and Kiefel JJ).

  2. Once again, however, the relevant circumstances in the present case, compared to those in Mr Murdoch’s case, do not point in only one direction. DJD’s lesser age pointed towards a lesser sentence than Mr Murdoch’s whereas the fact that DJD was on parole at the time of the offending unlike Mr Murdoch pointed in the other direction. As to their criminal histories, both had a prior offence of violence but DJD had a more significant criminal history while in custody after being arrested for the offending for which he is to be sentenced and thus specific deterrence and protection of the community may have a greater role to play in his case. Furthermore, as Mr Coady acknowledged, DJD’s mental illness “cut[s] both ways” [13] in this regard. It also appeared that DJD had more direct involvement with DPD, who was the person who knew Mr Kourtis and had argued with him about drugs, than Mr Murdoch but it was not possible to determine, on the evidence, whether this difference was significant. Nor was it possible to determine whether DJD took more of a leadership role than Mr Murdoch. Finally, Mr Murdoch’s remorse, good prospects of rehabilitation and achievements while in custody also suggested that these factors mitigated his sentence but the offender did not have the benefit of similar findings in his favour.

    13. Tcpt, 22 August 2023, p 9(38).

  3. While it was far from clear cut, in my view, the differences in degrees of culpability and circumstances between DJD and Mr Murdoch justified DJD’s sentence being, in general terms, of about the same severity as Mr Murdoch’s.

  4. However, consideration of parity was further complicated in the present case by the fact that Mr Murdoch was sentenced to a fixed term of imprisonment of three years. As a result, a non-parole period and balance of term were not specified. It was not suggested that a fixed term would be appropriate in DJD’s case and I accept that this is so.

  5. It has been held that in cases such as R v Dunn [2004] NSWCCA 346 at [161] (Handley JA, James and Howie JJ) that:

“… where a fixed term of imprisonment is imposed the fixed term will be equivalent, not to the total term of a sentence containing a non-parole period and a parole period, but merely to the non-parole period of such a sentence.”

  1. Nonetheless, as explained by N Adams J in Waterstone v R [2020] NSWCCA 117 at [63]-[79] this approach has not been universally adopted.

  2. In the circumstances, I accept Mr Coady’s submission that, for the purposes of considering parity in the present case, the three year fixed term imposed on Mr Murdoch should not be taken to be strictly equivalent to the non-parole period which would have been applicable but it should, nonetheless, be taken into account as a useful guidepost in determining DJD’s sentence, which I have done.

Conditions in custody

  1. The offender was arrested and entered custody on 29 May 2020 and, as I have already said, spent 280 days in custody solely as a result of the offending for which he is to be sentenced. During that time, it is well known that more onerous restrictions than usual were imposed on persons in custody because of the Covid-19 pandemic. Although there was no specific evidence on how this affected DJD, I accept that there was some relevant adverse effect and I have taken this into account in determining the appropriate sentence.

Victim impact statement

  1. A victim impact statement prepared by Ms Ulaan McKenzie was tendered by the Crown without objection from the offender. [14] Ms McKenzie referred to the impact of the home invasion upon her, including the nightmares it has caused, the adverse impact on her mental health and her living in fear for her own safety and that of her family. I have considered this material.

    14. In accordance with Pt 3 Div 2 of the Sentencing Procedure Act.

Imprisonment

  1. The Crown submitted that, in the circumstances of the present case, no penalty other than imprisonment was appropriate and Mr Coady, on behalf of the offender, did not submit that a full-time custodial sentence was not warranted.

  2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate.

Comparable cases

  1. Mr Coady submitted on the offender’s behalf that his youth as well as the “confounding factors of his mental illness and personality disorder” meant that little assistance was to be derived from other cases and statistics of other sentences imposed for this offence. I accept Mr Coady’s submission in this regard. Neither party referred to any specific cases said to be comparable, other than Mr Murdoch’s.

Totality and backdating

  1. As has been noted already, the offender has been serving sentences for assault occasioning actual bodily harm in company, reckless wounding in company, riot, intentionally damaging property and assaulting law enforcement officers, all while in custody, from 29 September 2021. The non-parole period for the last of those sentences expires on 19 September 2023 and the last sentence expires on 21 March 2024.

  2. In these circumstances, s 55 of the Sentencing Procedure Act is applicable. [15] That section relevantly provides:

    15. It can be noted that it was common ground that s 56 of the Sentencing Procedure Act did not apply in relation to the sentence to be imposed in this case.

“(1) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender—

(a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, ….

…

is to be served concurrently with the other sentence of imprisonment ….

(2) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served consecutively (or partly concurrently and partly consecutively) with the other sentence of imprisonment ….

(3) A direction under this section has effect according to its terms.

(4) In this section, a reference to a sentence of imprisonment is taken to be a reference to—

(a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, …

(5) This section does not apply to—

(a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or

(a1) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control, or

…”. [16]

16. Given the context provided by s 56 of the Sentencing Procedure Act, the words “a sentence of imprisonment imposed” in s 55(5)(a) and (b) are to be construed as a reference to the sentence to be imposed by the Court considering the application of s 55 and not to a sentence previously imposed.

  1. The offender submitted that no direction should be made under s 55(2) and thus the sentence to be imposed should be served concurrently with the other sentence of imprisonment being served by the offender, the non-parole period of which is yet to expire. The basis for refusing to make a direction was said to be that the offender:

  1. was a juvenile at the time of the offending;

  2. suffers from a major mental illness which has led to his being incarcerated in the Long Bay Hospital including in isolation for a considerable period and has played a causal role in his offending over the last three to four years;

  3. to do otherwise would lead to a crushing sentence and interfere with his prospects of rehabilitation and reintegration into society.

  1. Alternatively, it was submitted that, in light of the seriousness of the offences while in custody, the sentence to be imposed could be made partly concurrent with the sentence that the offender is currently serving.

  2. The Crown in effect contended that considerations of totality, the separate criminality involved and the fact that the sentence which the offender is currently serving related to offences committed in custody required a degree of accumulation.

  3. By virtue of s 55(4), the only “other sentence which is yet to expire” is the four month non-parole period for two offences of assaulting a law enforcement officer. That non-parole period expires on 19 September 2023.

  4. In my view, taking into account the offender’s youth and significant mental illness, some degree of concurrency is required but the separate and distinct criminality and the seriousness of the previous offences of assaulting a law enforcement officer mean that the sentence to be imposed should not be entirely concurrent with the sentence he is currently serving.

  5. Furthermore, I have taken into account that the offender has been continuously in custody serving other sentences from 29 September 2021 to date and the non-parole period for the last of those sentences does not expire until 19 September 2023. The sentence which I have determined to impose has been set taking into account the principle of totality and so as to avoid a sentence which, when taken with the unexpired and previous sentences imposed on the offender since 29 September 2021, would be crushing. Nonetheless, I have also taken into account that the sentence must be sufficient to ensure that the offender is adequately punished for the offence of entering a dwelling house with intent to commit a serious indictable offence in company.

  6. In these circumstances, and taking into account the 280 days that the offender has spent in custody solely attributable to the offence for which he is to be sentenced and concurrency, the commencement date of the sentence will be 26 September 2022.

Special circumstances and the statutory ratio

  1. A finding of special circumstances for the purpose of varying the statutory ratio of the non-parole period to the balance of term was sought on the basis of the offender’s mental illness and substance use disorder, the availability of NDIS support in the community and Dr Furst’s recommendation of a Community Treatment Order. The Crown did not oppose such a finding being made in light of the offender’s age and need for rehabilitation as well.

  2. In my view, the offender’s young age, mental health conditions and need for rehabilitation, with the support proposed, clearly justify a finding of special circumstances. Consequently, I shall adjust the statutory ratio of the non-parole period to the balance of term for the sentence that I impose to somewhat less than 60%.

  3. When, however, the ratio of total time that the offender has been continuously in custody serving one or more sentences of imprisonment since 29 September 2021 to the balance of term which I shall impose is considered, that ratio will be close to the statutory ratio of 75%. I have considered this matter, but am of the view that the non-parole period I propose to set is the minimum necessary in the present case, having regard to all the circumstances of the case and the relevant principles of sentencing. A lesser non-parole period would not adequately reflect the seriousness of the offending and the need to ensure that the offender is adequately punished for the offence.

Sentence

  1. Given the nature of the offending contrary to s 111(2) of the Crimes Act, being a violent home invasion, general deterrence should be accorded some limited weight in determining the sentence, notwithstanding the fact that the offender’s circumstances make him a less suitable vehicle for this purpose. Similarly, personal deterrence has a role to play in the sentence to be imposed, moderated by the offender’s mental health conditions and subjective circumstances. His circumstances also justified the conclusion that his moral culpability was reduced. Against this, however, must be weighed the protection of individuals and the community because of the offender’s mental health conditions.

  2. Having regard to these and the other purposes of sentencing set out in s 3A of the Sentencing Procedure Act, the principles in s 6 of the Children (Criminal Proceedings) Act, the objective seriousness and circumstances of the offending, the subjective case of the offender and the other relevant principles and considerations including those to which I have already referred, in my view, the appropriate term of imprisonment for the offence of entering a dwelling house with intent to intimidate while in company contrary to s 111(2) of the Crimes Act is 4 years 10 months commencing on 26 September 2022 and expiring on 25 July 2027, with a non-parole period of 2 years and 10 months, expiring on 25 July 2025. I note that the ratio of the non-parole period to the head sentence is 58.6%.

Orders

  1. For these reasons, the Court orders that:

  1. Pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW), the back up offence of the offender having his face disguised contrary to s 114(1)(c) of the Crimes Act 1900 (NSW) is dismissed.

  2. Pursuant to ss 168 and 202 of the Criminal Procedure Act 1986 (NSW), the related offence of destroying or damaging property contrary to s 195(1) of the Crimes Act 1900 (NSW) is dismissed.

  3. The offender is sentenced for the offence of entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act 1900 (NSW) to imprisonment for a non-parole period of 2 years and 10 months commencing on 26 September 2022 and expiring on 25 July 2025, with a balance of term of 2 years expiring on 25 July 2027.

  4. The offender will first be eligible for release on parole from the expiration of the non-parole period on 25 July 2025.

**********

Endnotes


“(a) the seriousness of the indictable offence concerned,


(b) the nature of the indictable offence concerned,


(c) the age and maturity of the person at the time of the offence and at the time of sentencing,


(d) the seriousness, nature and number of any prior offences committed by the person,


(e) such other matters as the court considers relevant.

Decision last updated: 01 September 2023

Cases Citing This Decision

0

Cases Cited

14

Statutory Material Cited

5

Aslan v R [2014] NSWCCA 114
Carreno v The King [2023] NSWCCA 20
Cheung v The Queen [2001] HCA 67