R v Donnelly

[2019] NSWDC 742

District Court

New South Wales

Medium Neutral Citation:	R v Donnelly [2019] NSWDC 742
Hearing dates:	05-09, 12-15 August 2019 (trial); 18 October 2019 (sentence hearing)
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [88]
Legislation Cited:	Crimes Act 1900 (NSW) ss 66C(3), 66D, 66M(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 25AA
Cases Cited:	Coles v R [2016] NSWCCA 32 Elchiekh v R [2016] NSWCCA 225 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v KNL (2005) 154 A Crim R 268 R v Sea (Unreported, 13 August 1990) Sabra v R [2015] NSWCCA 38
Texts Cited:	N/A
Category:	Sentence
Parties:	Regina (Crown) Andrew Donnelly (Offender)
Representation:	Counsel: Ms E. Curran (Solicitor Advocate) Mr B. Brassil (Offender)   Solicitors: Office of the Director of Public Prosecutions Longton Legal
File Number(s):	2016/361725
Publication restriction:	s 578A Crimes Act 1900 (NSW) andS 15A(1) of the of the Children (Criminal Proceedings) Act 1987 (NSW) applies

Judgment

1. On 5 August 2019, the offender was arraigned and pleaded not guilty to six offences as follows:

1. On 3 June 2005, at Liverpool in the State of New South Wales, assaulted BH and at the time of the assault committed an act of indecency on BH, in circumstances of aggravation, namely, that at the time of the offence BH was under the age of 16 years, namely 14 years, contrary to section 61M(1) of the Crimes Act 1900 (NSW); [1]

   1. Hereinafter referred to as the ‘1900 Act’.

2. On 3 June 2005, at Liverpool in the State of New South Wales, assaulted BH and at the time of the assault committed an act of indecency on BH, in circumstances of aggravation, namely, that at the time of the offence BH was under the age of 16 years, namely 14 years, contrary to section 61M(1) of the 1900 Act;

3. On 3 June 2005, at Liverpool in the State of New South Wales, assaulted BH and at the time of the assault committed an act of indecency on BH, in circumstances of aggravation, namely, that at the time of the offence BH was under the age of 16 years, namely 14 years, contrary to section 61M(1) of the 1900 Act;

4. On 3 June 2005, at Liverpool in the State of New South Wales, assaulted BH and at the time of the assault committed an act of indecency on BH, in circumstances of aggravation, namely, that at the time of the offence BH was under the age of 16 years, namely 14 years, contrary to section 61M(1) of the 1900 Act;

5. On 3 June 2005, at Liverpool in the State of New South Wales, attempted to have sexual intercourse with BH a person above the age of 10 years and under the age of 16 years, namely, 14 years, contrary to section 66D of the 1900 Act; and

6. On 3 June 2005, at Liverpool in the State of New South Wales, had sexual intercourse with BH, a person under the age of 16 years, namely 14 years, contrary to section 66C(3) of the 1900 Act.

2. On 15 August 2019, a jury of twelve delivered verdicts of not guilty in relation to counts 1 to 3 and guilty in relation to counts 4 to 6. The matter was thereafter adjourned for sentence submissions on 18 October 2019 and to this date for the delivery of sentence.

FACTS

3. Each of the parties submitted their version of events in relation to the facts that should be found on sentence. In this respect, I am mindful of the principles in MFA v The Queen. [2]

   2. (2002) 213 CLR 606; [2002] HCA 53 at [34] per Gleeson CJ, Callinan and Hayne JJ.

4. BH the victim in this case, was aged 14 years. The offender was aged 24 years. The offender was friends with AB, who was also friends with the victim. KLJ was AB’s cousin. KLJ‘s cousin was KW.

5. On the night of 3 June 2005, the offender, the victim and each of KLG, AB and KL were at the apartment of the offender at Liverpool. At one point they all departed to take KW home before returning to the apartment. Count 1 was alleged to have occurred in a room at the apartment before they departed. Counts 2 and 3 were alleged to have occurred respectively on route to KW’s home and on the return journey to the apartment after KW had been dropped to her home. As noted the offender was found not guilty in respect of each of these counts. The offender is entitled to the full benefit of the acquittals in respect of counts 1 to 3 which concerned allegations of indecent assault upon the victim at an earlier time on 3 June 2005.

6. Thereafter the offender, AB, KLG and the victim arrived back at the Liverpool apartment. A short time later AB left to take the car he had been driving back to his brother, leaving the victim, KLJ and the offender alone.

7. The offender put some music on and started dancing with the victim. The victim and KLJ subsequently went into the offender’s bedroom and lay on his bed. The offender followed them and lay between the victim and KLJ. Both KLJ and the victim walked out of the bedroom.

8. A short time later both the victim and KLJ went back into the bedroom. The victim’s evidence was that the offender told KLJ to leave, which she did, leaving the victim alone with the offender.

9. The offender is then said by the victim to have locked the door to the bedroom. The victim was laying on the bed. The offender took off his pants and pulled the victim’s jeans, shorts, stockings and underwear off. The victim described being scared and ‘frozen’ as she lay there.

10. The offender attempted to put his penis into the victim’s vagina; however, she was moving and squirming and he was not able to (Count 5).

11. The offender then put his penis into the victim’s anus (Count 6).

12. Whilst the offender was inserting his penis into the victim’s anus, he was leaning on the victim and holding her left breast and licking or sucking her right breast (Count 4). Whilst this was happening, the victim told the Offender “Can you stop it?” and “I have to go, I want to get out of here.” The victim also said “Can you get off me you’re hurting me” and “I don’t want this.”

13. The victim was moving which caused the offender to fall off the bed onto the floor. The victim quickly put her jeans back on, unlocked the bedroom door, walked out and went to the bathroom.

14. AB returned to the apartment a short time later. The offender told AB to get the victim and KLJ out of the apartment. The victim, KLJ and AB left the apartment. The victim subsequently told AB that the offender had sexually assaulted her. The victim also told KLJ whilst they were in the car “I can smell him on me.”

15. The following morning, the victim complained to KW stating “Andrew just sexually assaulted me”. KW took the victim to report the assault to the authorities. The victim was taken to Liverpool Hospital where a sexual assault examination was conducted by Dr Nittis on 6 June 2005. During this examination swabs were taken of the victim’s breast where the offender licked her. These swabs were tested for DNA and a DNA profile was recovered from the right breast swab.

16. A DNA link notification was received by Police 11 years later which matched the offender’s DNA profile to the profile recovered from the swab taken on the victim’s right breast.

17. In December 2016, the offender was arrested. The offender consented to a forensic procedure and a buccal swab was taken. This swab was sent to the Police laboratory for testing. The DNA profile taken from the swab of the victim’s breast was found to contain the same profile as the Offender.

18. The offender was then charged with the six offences outlined above.

19. One of the matters of contention between the parties was whether the Court would be satisfied beyond reasonable doubt that at the time of the relevant offending in Counts 4 to 6, the Offender was aware of the victim’s age.

20. The Crown relied on the victim’s description relevant to Count 1 in her recorded interview as follows:

“Um. He poured a couple of shots and I walked into a spare room… And he goes, You Know, you’re really sexy. I do. Well, I do, Sorry, I can’t do anything about that. I go, And you shouldn’t be saying that anyway. I go. You’re 24 and I’m only 14. And he goes, I really shouldn’t be doing this and then that’s when he first kissed me.” [3]

3. Record of Interview, Q160-161.

21. The Defence submitted that bearing in mind the jury’s verdict on Count 1, it is not open to reason from the alleged conversation in the spare room that those words were spoken such that the offender was aware of the victim’s age at the time of Counts 4 to 6.

22. No other witness gave evidence of seeing the offender and the victim enter a spare room in the apartment and no witness gave evidence of hearing a conversation between the offender and the victim to this effect. Bearing in mind the jury’s verdict on Count 1, I cannot be satisfied beyond reasonable doubt that the relevant words were said. However, ultimately I accept that the evidentiary onus for reasonable mistake of fact as to the victim’s age was not made out in respect of the subject Counts. [4]

    4. T 338.01-.05.

23. The Defence drew attention to the point prior to the relevant offences when KLJ and the victim were in the offender’s bedroom. It was submitted that the evidence did not establish beyond reasonable doubt that the Offender told KLJ to leave the bedroom.

24. The victim’s account to police on 7 June 2005 was that the offender pushed KLJ and asked her, “Oh can you go out for a minute KLJ”. [5]

    5. MFI 8; Q 220.

25. In her recorded interview on 14 August 2005, KLJ stated that after the victim entered the bedroom she left and “went and changed the music.” [6] In evidence, KLJ stated that she was not too sure why she left the bedroom. [7] When asked if anyone asked her to leave the bedroom, she stated “No, not that I remember.” [8] Following further questioning pursuant to leave under s 38 of the Evidence Act1995, the matter was put again in the following exchange.

Q. You left the bedroom because Andrew told you to leave, that’s the truth?

A. Not that I can recall, no. [9]

6. MFI 11; Q 187.

7. T 121.35.

8. T 121.45-.06.

9. T 135.11-.12.

26. The suggestion that the Offender “pushed KLJ” was not put to her, nor did she give evidence along those lines.

27. In all of the circumstances, I cannot be satisfied beyond reasonable doubt that KLJ came to leave the bedroom at the offender’s instigation.

28. The Crown further contended that I would be satisfied that after KLJ left the offender’s bedroom for the last time, the offender locked the door to the bedroom door.

29. The Defence contended that there was evidence that the victim and KLJ had earlier attempted to lock the bedroom door but were unable to do so. [10] In oral evidence the victim stated that she and KLJ possibly went to the bedroom to lock the door. The victim recalled that she couldn’t manage to lock it but stated that she wasn’t too sure if KLJ tried. It was put to the victim that the lock was not working; however, she stated that she did not know. [11] The victim rejected the suggestion that the door was not locked the entire evening, [12] maintaining that after the subject assaults she stumbled with the lock and managed to unlock it. [13] There was evidence that the Plaintiff subsequently recounted to Dr Nittis that the Offender had locked her in. [14]

    10. T 83.24-.42; MFI 8; Q 218-219 and MFI 11; Q 230-236.

    11. T 83.42.

    12. T 83.49.

    13. T 84.11-.22.

    14. T 158.25.

30. The Defence submitted that in these circumstances the evidence did not establish beyond reasonable doubt that the offender locked the bedroom after KLJ left the room.

31. It was further submitted that it was not open to have regard to this aspect, bearing in mind the charge which the offender was found guilty did not include detain by advantage.

32. The fact that both the victim and KLJ gave evidence about unsuccessfully trying to lock the door at an earlier time did not mean that the door was not capable of being locked by the offender. On the victim’s account, I am satisfied that the offender did in fact manage to lock it after KLJ left. The offender’s account to the contrary was rejected by the jury. That, however, does not mean that the offender undertook that act to detain the victim who ultimately was able to unlock the door relatively easily to exit without alerting KLJ, as opposed to preventing entry. However, I am satisfied this left the victim in the position where she was, to her mind, more isolated.

OBJECTIVE SERIOUSNESS

33. The Defence submitted that each offence fell below the mid-range, particularly bearing in mind the short time during which the offences were said to have been committed. Although, overall the pain and distress it caused to the victim was acknowledged.

34. The Crown drew attention to the age difference between the victim and the Offender, the pain that the victim endured, and the fact that she was “scared frozen”. It argued that the attempted sexual intercourse offence fell below the mid-range of offending, the aggravated indecent assault was at the mid-range, and the sexual intercourse offence was also at the mid-range.

35. A significant matter which determines where the offences lie in the spectrum of offending is the degree to which the offender is seen to have exploited the youth of the victim. [15] In this instance force was used against the victim’s resistance, albeit that each of the offences was off relatively short duration.

    15. R v Sea (Unreported, 13 August 1990); R v KNL (2005) 154 A Crim R 268 at [42]-[43] per Latham J and Buddin JJ, Brownie AJA.

36. In assessing the objective seriousness of Count 5, I note that this involved attempted penile vaginal intercourse which did not proceed due to the resistance of the victim. It was preceded by the events earlier described. The age difference was 10 years, with the victim being aged towards the higher end of the spectrum of ages covered by the section (10 - 16 years).

37. In assessing the objective seriousness of Count 4, I bear in mind that the offence involved a victim at the higher end of the spectrum of ages (0 to 16) embraced by the section, and that the relevant age difference with the Offender was 10 years. It involved holding the victim’s left breast and licking or sucking her right breast whilst committing Count 6. As such, skin on skin contact was involved.

38. In assessing the objective seriousness of Count 6, I bear in mind that this involved penile anal intercourse. Again, it was of relatively short duration committed in conjunction with Count 4. It’s cessation was brought about by the victim’s resistance. The victim however was at the bottom end of the age group embraced by the section (14 to 16).

39. No submission was advanced that the offender’s moral culpability for the offending was reduced by reason of his deprived upbringing (discussed below) or mental condition. Although there was evidence that the Offender had used alcohol in conjunction with the commission of these offences, this is not a mitigating factor. [16]

    16. S 21 A (5AA) of the 1999 Act

40. At the time of the offending, the offender was in employment. Although his previous relationship had broken down, he gave evidence of being in a new relationship. [17]

    17. T 229.50-230.4

41. It was accepted that the offending caused some pain and distress to the victim. I am satisfied that it was largely opportunistic. In respect of counts 4 and 5, I accept that the objective features fall towards mid-range of seriousness, and in respect of Count 6, in the mid-range.

SUBJECTIVE FACTORS

Plea

42. The Offender was convicted following a trial and is accordingly not entitled to a plea discount.

Good Character

43. No submission was advanced on the offender’s behalf that he is otherwise of good character.

Conditional Liberty

44. The Crown observed that at the time of the offence, the offender was serving a section 12 bond for an offence of drive whilst disqualified, which expired on 20 May 2016, in circumstances where he was not arrested in relation to the subject matters until 2 December 2016. The bond was not called up. Nevertheless, it was acknowledged that it was an aggravating factor on sentence because it meant that at the time of the offences, the Offender was on conditional liberty.

Prior Record

45. The Offender does have a history of prior convictions. That offending includes a range of driving matters, one offence of assault occasioning actual bodily harm, one offence of common assault, and two offences of obtaining money by deception. The offender’s record at the time could not be described as substantial and no submission was advanced that the offender’s record constituted an aggravating factor on sentence.

Early Background

46. The Court has before it a letter from the Offender’s parents, Beverley Donnelly (step mother) and Shawn Donnelly (birth father). [18] It discloses that the Offender was born in Caringbah in 1980 and has one older sister. The Offender’s father separated from his birth mother in 1985, and the Offender was then in the full time care of his birth mother.

    18. Exhibit 1.

47. When the Offender was aged 8 or 9 years of age, he came to live with his father and step mother on a full time basis. He grew up in the family home in Chipping Norton and then in the Southern Highlands.

48. The Court was provided with a report used in relation to earlier proceedings by the offender, being a report from Kerry Watson, psychologist, dated 19 June 2017, which was tendered as Exhibit 2. Much of the earlier history provided by Mr and Mrs Donnelly are confirmed in the said report. It notes however, that the offender lived with his father until aged 12 when his father was imprisoned for 5 years and then resided with his aunt for a few months, and thereafter stayed with various friends of his father until he was aged 16 and his father had completed his prison sentence. The offender stated “I didn’t have much guidance growing up.”

Education and Employment

49. In regards to the Offender’s education and employment, Ms Watson’s report notes that the offender completed Year 10 at school and his schooling was marred by behavioural problems. Upon leaving school he completed 8 months of a Panel beating apprenticeship, and from age 17-20 he was employed as a Service Station Attendant. For the next 3 years, the offender was unemployed and stated “I just went off the rails for a few years”.

50. At the age of 23, the offender was noted to have commenced an employment position of some 10 years, during which he was promoted to the position of “transport supervisor”. In evidence however he stated that at the time of the offending he was working a stonemason’s assistant [19] . In 2012 however, the offender sustained a workplace injury to his right arm and subsequently he has not been able to return to the workforce

    19. T 230.20-.31.

Social History

51. According to Mr and Mrs Donnelly at aged 19, the offender moved out of home and was then in a relationship with the mother of his two children. That relationship broke down, and the offender’s children moved interstate with their mother. As a result, the offender was unable to see his children.

52. Ms Watson’s report also notes that the offender has two children which were born to a relationship that commenced when he was aged 17 and dissolved when he was aged 21. The offender’s son was born when he was aged 18 and his daughter was born when he was aged 20. The offender had limited contact with his children in the first few years of the relationship breakdown, which eventually ceased entirely.

53. Mr and Mrs Donnelly reported that in about 2010, the offender married another woman and during this relationship, there was a downward spiral in the offender’s mental health. They noted that the offender was using drugs quite often and the relationship became toxic.

54. In about 2015, the offender’s marriage broke down and he was unable to work due to his work injury. In these circumstances, he was noted to again go into decline, as he was heavily using drugs and associated with the wrong crowd, and this caused his behaviour to be erratic and unlike the person that they had known. They further observed that the offender stopped taking his medication for his mental health conditions and his downward spiral escalated to the point where he was arrested for very serious offences in 2016.

51. Mr and Mrs Donnelly’s letter notes that since being in gaol, the offender’s medication has been regularly managed to address his issues and this helps him, such that his mental health has improved significantly.

52. Ms Watson recorded that when the Offender was aged 28, he commenced a relationship with the woman that became his wife in 2010. Their marriage dissolved in 2015, which the Offender attributed to the hardships they had encountered as a couple throughout the relationship and due to his declining mental health state. The Offender’s then wife suffered 13 miscarriages throughout the course of the marriage and their inability to have children placed considerable strain on the marriage.

Hardship

57. According to Mr and Mrs Donnelly In April 2012, the offender’s sister suffered catastrophic injuries in a motor vehicle accident, requiring significant ongoing intervention. It was observed that the offender was assisting his sister with as much help and support as he was able to offer.

58. The offender’s parents stated that the offender’s assistance became a large part of his life, and his wife did not like this. This made things difficult for the offender and it was noted that he clearly could not cope.

59. In March 2016, the offender’s stepmother was diagnosed with multiple sclerosis. Since being diagnosed and experiencing symptoms of fatigue and pain, she has been unable to work and provide adequate care to the Offender’s sister. Whilst the Offender’s father works full time as a truck driver, he takes on a lot of responsibility to help care for the family.

60. The offender’s step mother states that the offender, “… reminds us how sorry he is for being in gaol and not being able to help us at home.” She further states:

As sad as it is to see Andrew in gaol, we know that he will come out a healthy man with a solid vision for an improved future. He desperately wants to work and help his sister and I through our difficult times. We need Andrew out of gaol to move in with his sister and help care for her. We trust that Andrew will do everything he is required to do so as to see him back home and once again being a contributing member of the community.

61. Despite the force of this evidence, no submission was advanced on the offender’s behalf that the sentence would create hardship for other members of the family such that it amounts to exceptional circumstances. However, it is a factor I bear in mind in a general way on sentence.

Health

62. In relation to the offender’s drug and alcohol history, Ms Watson records that the offender began smoking marijuana at age 13 which continued on a frequent basis until his incarceration in 2016. It also notes that the offender commenced drinking alcohol when he was aged 13, and from adolescence up until 2012, he consumed alcohol in a binge drinking pattern. At the age of 21 and following the breakdown of his relationship, the offender’s use of alcohol increased and he was binge drinking some 3 to 4 times weekly up until he was aged 27. The offender then ceased his alcohol use following a workplace accident in 2012.

63. It is recorded that at age 15, the Offender commenced using amphetamines (speed) and within a month he was using speed on a daily basis which continued up until he was aged 18, when he became a father. It is further recorded that in 2013 and some 12 months after the offender’s workplace accident, he commenced using methamphetamines (ice). By late 2015, the offender had developed an addiction to ice which he was simultaneously and sequentially using with Speed, Xanas (benzodiazepine), and marijuana, which continued up until his arrest in 2016.

64. The report recorded under the heading of opinion:

Mr Andrew Donnelly is clearly a very troubled man that is suffering with a plethora of mental health concerns including a Schizoaffective Disorder (Depressive Type) and a Post-Traumatic Stress Disorder (Diagnostic & Statistical Manual of Mental Disorder-V).

Mr Donnelly’s Schizoaffective Disorder is characterised by: episodic psychotic symptoms during which he loses touch with reality, experiences delusions and perceptual disturbances, in addition to depressive symptoms including persistent despondency, loss of motivation and interest, social withdrawal, fatigue, feelings of hopelessness and helplessness, and passive suicidal thoughts.

Mr Donnelly is additionally suffering with a Post-Traumatic Stress Disorder relating to his workplace accident/injury in 2012 and the home invasion in 2014, that is characterised by persistent anxiety, recurrent and intrusive thoughts and perceptions, flashback episodes, and intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic experiences. [20]

20. Exhibit 2, p 8.

65. The offender’s workplace injury was described by Ms Watson as a significant injury to the right arm which required the offender to undergo significant post right ulnar nerve transposition surgery. Ms Watson records that as a consequence he experienced persistent pain and physical incapacitation for an elongated period in addition to progressive and substantial decline in his mental health that was characterised by a persistent depressed mood, post-traumatic stress symptomatology, anxiety, and strong persecutory and paranoid thought processes, disassociated states and self-harm thought.

66. Ms Watson further records that Mr Donnelly attempted suicide in 2014 after which he was referred to the local area Mental Health Team and diagnosed with a schizoaffective Disorder and a Post-Traumatic Stress Disorder. He further received psychological counselling.

67. Ms Watson further noted:

Medical documentation dated 10/11/14 and 13/05/15 from the treating Psychologist, Shrin Steev, Allcare Carnes Hill Medical Centre, documented presenting symptomatology of: Agitation; fluctuating Mood states; Impulsive Anger Episodes with dissociation; PTSD flashbacks; self-harm thoughts; Persecutory and paranoid thought disorder; Perceptual thought processes such as visual and auditory hallucination; Social withdrawal; and Anxiety with episodic amnesia, The treating psychologist also noted that Mr Donnelly was grieving towards his sister’s involvement in a serious Motor Accident which had served to aggravate Mr Donnelly’s symptomatology.

68. The report goes on to state that the offender’s history since adolescence is characterized by a maladaptive and compulsive pattern of drug and alcohol abuse.

69. Many of the features of his mental health condition referred to, post-date the commission of the offences for which he is to be sentenced.

70. Ultimately Ms Watson opines that the offender presentation is indicative of symptomatology consistent with schizophrenic disorder and post-traumatic stress disorder.

71. Mr Donnelly is recorded as having described to Ms Watson (in 2017 post him being charged with the subject offences) a persistent and prominent stress and worry about his predicament and the prospect of serving a lengthy prison sentence. He stated “I don’t know how I will survive here”. He referred to a state of anxiety that is characterised by muscle tension, restlessness; pounding heart/chest and persistent feeling of impending doom and insomnia.

72. Testing under DASS 21 resulted in the offender scoring in the “extremely severe” range for depression, stress and anxiety.

73. No submission was advanced that the offender’s time in custody would be made more difficult by reason of his mental health condition, nor that he cannot access the treatment required to manage his condition. The letter of Mr and Mrs Donnelly indicates that there has in fact been a marked improvement in the condition of the Offender whilst he has been in custody.

Delay

74. The Crown conceded that there has been some delay in bringing the Offender to justice in respect of the offences, as he was not charged with the offences until 11 years after they were committed. However, the Crown’s submission was that substantial delay does not necessarily entitle the Offender to leniency and each case depends on its own circumstances. It was submitted by the Crown that the delay in this case operated to the Offender’s advantage as he was able to reside in the community for a significant portion of that time. It further observed that where delay is relied upon as a mitigating factor, the onus is on the Offender to establish it on the balance of probabilities. [21]

    21. Elchiekh v R [2016] NSWCCA 225 at [56].

75. I have noted the statement of Mr and Mrs Donnelly that the offender was looking forward to his release and starting his the next chapter of his life until this came to an abrupt halt when he was charged with the offences in question in 2016. I have also noted the report of Ms Watson as to the offender’s consequent anxiety.Tthe delay is significant and it was not submitted that it was attributable to the offender. In the circumstances, I accept it is appropriate that I take it into account as a matter of fairness to him. [22] The impact of delay on rehabilitation is discussed below.

    22. R v Todd [1982] 2 NSWLR 517 at 519-520 approved in Mill v the Queen (1988) 166 CLR 59 36 ACrim R 468 [1988] HCA 70. See also Sabra v R[ 2015] NSWCCA 38 per Bellew J at [33] (Meagher JA and Schmidt J agreeing). In Coles v R [2016] NSWCCA 32 at [18] – [19] (Fullerton J, with whom Hoeben CJ at CL and Adams J agreed), approved the reasoning of Bellew J in Sabra v R [2015] NSWCCA 38.

Likelihood of Reoffending and Prospects of Rehabilitation

76. The Defence submitted that the offender’s record would indicate that he has some reasonable prospects of rehabilitation.

77. The offender was convicted of having the custody of a knife in a public place, possess a prohibited drug in 2012 and two driving offences in 2015. In each instance, fines were imposed.

78. Subsequently the offender has been in custody since 29 January 2016 for the following offences which occurred on 10 September 2015 and in respect of which he was charged on 11 September 2015:

• Take and drive conveyance without the consent of the owner;

• Goods in custody suspected of being stolen;

• Drive motor vehicle during disqualification period; and

• Police pursuit.

79. The sentence for these offences expired on 18 March 2017, although he was to be released to serve a parole period commencing 19 March 2016.

80. However, the offender also came to be charged on 29 January 2016 with offences which occurred on 28 January 2016 being:

• Drive manner dangerous;

• Drive motor vehicle during disqualification period;

• Use offensive weapon in company with intent to commit an indictable offence;

• Possess unauthorised prohibited firearm.

81. In respect of these matters, the offender was sentenced to an aggregate sentence of imprisonment for 4 years with a non-parole period of 2 years and 9 months, commencing on 28 April 2016. The non-parole period expired on 27 January 2019, and the head sentence will expire on 27 April 2020.

82. In this case, the period of delay has not been such that it evidences that the offender has been fully rehabilitated.

83. He has engaged in some serious offending since he committed the relevant offences for which he is to be sentenced. Furthermore his custodial record shows that he has come to the attention of the authorities for various breaches of discipline, including being in possession of an offensive weapon (06/06/2018), failing a prescribed drug test (17/06/2018), and refusing to supply a drug sample (11/09/2019).

84. Notwithstanding this, there was an 8 year gap where the offender was not found to have committed other offences. I bear this in mind, as I do the fact that the offender has family support. He also appears to have some insight into the underlying causes of his offending generally.

85. The offender remains a relatively young man and subject to being able to manage substance abuse, I consider overall that his prospects of rehabilitation are fair and his likelihood of reoffending as medium.

Special Circumstances

86. Both parties accepted that a finding of special circumstances was appropriate bearing in mind that the Offender suffers from mental health related difficulties, such that this would give him a greater period of time to integrate into the community and continue to address these issues. Ms Watson recommends in her report:

• Ongoing Psychological Intervention/Counselling (Cognitive Behavioural Therapy)

• Ongoing Psychiatric Intervention

• Participation in rehabilitation programs such as the MERIT program and the Maryfields Day Recovery Program [23]

23. Exhibit 2, p 9.

87. I recognise the force of these submissions. This offender will need supervision to successfully reintegrate into community life at the conclusion of his sentence. Beyond that, his sentence is in addition and partly concurrent with other sentences served by the offender since 2016. Bearing in mind the need for balance overall between the non-parole and parole periods, I would also find special circumstances on this account as well, although the extent that I can do so is restrained by the overall length of the sentence and the requirements of s 44(1) of the 1999 Act. In any event, the proposed parole period should be sufficient to facilitate his supervision and reintegration.

SENTENCE

88. The offender has been bail refused in relation to the present matters since 2 December 2016. However, his time in custody since then has related to other sentences he has been serving, albeit that he would have been eligible to be released to parole on 27 January 2019. Both parties accepted that it was open to the Court to back date the sentence to before 27 January 2019, albeit that such imprisonment would not be referable exclusively to the present matters. I accept that some back dating is appropriate and consistent with principles of totality. I propose to commence the sentence from 27 July 2018.

89. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes. [24] The Crown accepted that the offences committed involved a single episode of criminal conduct involving a single victim over a relatively short period time. Nevertheless, some degree of accumulation is appropriate so as to properly reflect the seriousness of each offence and the overall impact of what was done to the victim.

    24. Mill v The Queen (1988) 166 CLR 59 at 62-63

90. The sentence must be proportionate but reflective of s 25AA of the 1999 Act, including having regard to the trauma of sexual abuse on children as understood at the time of sentencing. Recognising the harm done to the victim is a required purpose of sentencing under s 3A(g) of the 1999 Act.

91. It is also necessary to provide for general deterrence, accepting the circumstances of the offending as I have found it. No particular emphasis on specific deterrence or protection of the community is called for.

92. The Offender needs to be punished, made accountable and his conduct denounced. The sentence also needs to provide for his rehabilitation.

93. I propose to proceed by way of aggregate sentence.

94. The offender is convicted.

95. In respect of Count 4, I would indicate a sentence of 2 years with a non-parole of 1 year and 3 months (bearing in mind the statutory guideposts of a maximum penalty 7 years imprisonment and a standard non-parole period of 5 years).

96. In respect of Count 5, I would indicate a sentence of 3 years and 3 months and in respect of Count 6 I would indicate a sentence of 4 years and 6 months (bearing in mind the statutory guideposts of the maximum penalty each carry a maximum penalty of 10 years imprisonment).

97. Overall, I would set an aggregate sentence 6 years comprising:

• A non-parole period of 3 years and 6 months commencing on 27 July 2018 and expiring on 26 January 2022; and

• Thereafter the offender is to serve an additional term of 2 years and 6 months from 27 January 2022 to 26 July 2024, during which he shall be eligible to be released to parole.

98. The offender’s earliest possible release date is 26 January 2022.

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Endnotes

Decision last updated: 12 December 2019