R v Donovan

[2023] NSWDC 149

District Court

New South Wales

Medium Neutral Citation:

R v Donovan [2023] NSWDC 149

Hearing dates:

11 May 2023

Date of orders:

11 May 2023

Decision date:

11 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Joseph Donovan is convicted and the appropriate discount is 25%.

2   I impose an aggregate term of imprisonment of 18 months to take into account the offender’s pre-sentence custody because an ICO cannot be backdated.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (11 May 2023) and expire on 10 November 2024.

4   The offender must report to the Mt Druitt Community Corrections Office on or before 4pm on 18 May 2023.

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence

CRIME — Property offences — Steal motor vehicle

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Mandranis v R [2021] NSWCCA 97

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Joseph Donovan (Offender)

Representation:

Counsel:
Mr A Wong (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/355562

Publication restriction:

None

Judgment

Introduction

1. Joseph Donovan (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H85408456	Offence	Maximum Penalty and SNPP
3	Aggravated break and enter and commit serious indictable offence, contrary to s 112(2) Crimes Act 1900	20 years with SNPP of 5 years
4	Steal motor vehicle, contrary to s 154F, Crimes Act 1900	10 years; no SNPP

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

4. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. The victim and his wife and children resided at an address in Tamarama. The property is over five levels. The first level contains three bedrooms. Each level can be accessed from an external staircase which leads into the backyard. The backyard and front yard are fenced off with a key code gate. There is an electronic security driveway gate at the front of the property.

7. At around 12:30am on 7 December 2021, the victim went to bed with his car, an Audi Q7 valued at $160,000, parked in the driveway but outside the security gate. The vehicle was locked.

8. At 2:52am, CCTV from the neighbouring property captured the offender and Brendan McLeod, the co-offender, looking over the fence into the victim’s property.

9. The victim, his wife and three children were asleep within the property. The front doors of the residence were locked, but the rear sliding doors were unlocked.

10. The offender and the co-offender gained access to the backyard by jumping over the fence from a neighbouring property. The offender was carrying a screwdriver and wearing gloves.

11. The offenders entered the victim’s residence through the closed but unlocked rear sliding doors. They stole the keys to the victim’s Audi and the victim’s wallet, containing $500 in cash, a driver’s licence, and three bank cards. They also stole an ASUS laptop valued at $1000 from the couch. The offenders departed from the residence from the rear door, leaving it ajar.

12. After 15 minutes, the offender and Mr McLeod returned to the street at the front of the residence. They entered the victim’s vehicle, with the offender in the driver’s seat, and drove away.

13. At 7:00am on 7 December 2021, the victim woke and notified police. The victim checked his bank account and discovered that his debit card had been used to make multiple transactions.

14. Between 4:19am and 8:12am, Mr McLeod had made purchases at McDonald’s in Kingsford and Woolworths in Redfern using the victim’s debt card. The total value of the purchases was $41.15. The offender had been waiting outside the stores as Mr McLeod made the purchases.

15. RMS toll movements record that the victim’s vehicle had been driven west on the WestConnex past Arncliffe at 11:35pm on 7 December 2021, before returning east past Arncliffe at 11:48pm. Toll images depicted the offender as the driver of the vehicle with Mr McLeod in the passenger seat.

16. On 14 December 2021, police located the victim’s Audi vehicle about 50 metres from Mr McLeod’s residence in Kingsford. Analysis of the vehicle revealed three fingerprints matching the offender.

17. On 15 December 2021, police executed a search warrant of Mr McLeod’s residence. Mr McLeod and the offender were arrested and conveyed to Waverly Police Station.

18. Police located and seized the following items from Mr McLeod’s residence:

1. $450 cash;

2. cut resistant gloves;

3. set of car keys to the Audi;

4. wrapped package within bum bag; and

5. a black and white face mask.

19. The offender declined to participate in an interview but consented to a buccal swab.

Sentencing Assessment Report

20. The Court received a Sentencing Assessment Report (SAR) dated 19 March 2023, which can be summarised as follows.

21. The offender comes from a large family and was homeless at the time that the offences were committed.

22. The offender completed Year 10 of high school. He has been employed in a number of positions since leaving school, but only for brief periods. At the time of the offences, the offender had been cut off from Centrelink payments and was experiencing financial hardship.

23. The offender has a juvenile criminal history, encompassing violence and property theft and damage offences. This has continued into adulthood.

24. The offender identified the impact of his actions not only on the victim, but also the victim’s family.

25. The offender disclosed chronic methamphetamine use in the lead up to the offences. He has abstained from all illicit substances in custody.

26. The offender told the author of the SAR that he is expecting the birth of his first child in June and has indicated a desire to turn his life around to enable him to support his child.

27. The offender expressed willingness to undertake intervention and has demonstrated his ability to do so on previous occasions. The offender was assessed as at a Medium-High risk of reoffending.

The Offender’s Case on Sentence

28. The offender tendered a psychological report of Vanessa Edwige dated 1 May 2022.

29. The offender was called to give evidence and cross-examined. He expressed remorse and outlined his plans for the future. He expressed a willingness to participate in interventions.

30. The following is a precis of the evidence relied on by the offender. I will try not to repeat matters raised in the SAR.

31. The offender is a 19-year-old Biripi man. He was born in Taree. His parents were separated when he was born. His is the second youngest of 17 children. He has a younger brother.

32. He and his brother were raised by his mother until they were removed from her care by the authorities due to her substance abuse when the offender was about 2 years old. The offender next saw his mother again when he was seven years old. At this time, she had stopped using drugs and was healthy. When the offender was 14, he formed a relationship with his father. This lasted for nearly a year, before his father died of cancer. The death of his father significantly impacted the offender and he reported that his behaviour began to “spiral” after this.

33. The offender reported multiple kinship placements following his removal from his mother’s care. He was placed with a maternal aunt for a number of years and was physically abused, deprived of food, and sometimes locked in a bedroom or bathroom for a number of days. The offender did not have enough clothes. He did not receive any affection.

34. He reported the abuse to the authorities when he was 14 and he and his brother were placed in the care of another aunt on his mother’s side. The offender struggled with this placement as his younger brother was not treated well. The offender remained in this placement until he attended Kinross Wolaroi School in Orange as a boarder. He was separated from his younger brother, which he found very difficult. The offender left boarding school after a short time and moved in with another Aunty in Taree. At this point, the offender’s behaviour deteriorated and he spent time in juvenile justice facilities. When the offender was approximately 17 years old, he was sexually abused twice in these facilities by the same male officer. The offender still feels deep shame and regret about this abuse.

35. In February 2018, the offender was arrested and as a result, his aunt informed the Biripi Aboriginal Children’s Service that she was unwilling to assist. The offender was placed in temporary care in Taree with a non-family member.

36. The offender’s grandmother was diagnosed with cancer in 2022. This caused him significant distress, as she has always been a consistent figure in his life. The offender’s younger cousin was hit and killed by a train in 2022, and this was also a source of distress.

37. The offender was released from custody in June 2022 to Wayback, a residential drug and alcohol rehabilitation centre in Parramatta. The offender found the centre to be a difficult place to be. He was exposed to substance misuse by other residents and he felt inadequately supported. The offender remained at Wayback for a few months before he was asked to leave after being found in a female resident’s room.

38. The offender went to stay with his sister in Penrith and started to use methylamphetamine again. Whilst using methylamphetamine, the offender began to feel very anxious and paranoid. He had secured a job concreting, but only worked for a week and a half as he was not being adequately paid.

39. The offender met his current partner after he left Wayback and they have been together since August 2021. She has a five-year-old daughter with whom the offender has a good relationship. The offender’s partner does not use drugs. The offender moved in with her and she has met his family in Taree. They are expecting their first child together in June 2023. The offender’s partner told Ms Edwige that she will support him through his recovery.

40. The offender had behavioural issues at school and reported that he was suspended from school on multiple occasions. The offender reported difficulties with learning to read, write and spell, although he is now able to do so.

41. The offender accessed school counselling services to discuss the abuse he was experiencing at the hands of his aunt. He reported finding this useful. He also saw a psychologist at this time, but she would report back to his aunt, and he would be physically abused by her after each session.

42. The offender began smoking ‘yarndi’ from 12 years of age. He started smoking crystal methylamphetamine at 17 years of age and using buprenorphine at 18 years of age. The offender reported that he was previously unable to function and lacked motivation unless he was using methylamphetamine. The offender reported that he started using methylamphetamine again after he was asked to leave Wayback. The offender told Ms Edwige that he wants to be a good father and does not want to smoke methylamphetamine anymore. He stated that he does not want his child to have to experience that. The offender was using methylamphetamine at the time of the offences.

43. The offender was in a motorcycle accident when he was 16 and this damaged one of his kidneys. In 2021, he had a cyst on his finger that caused him significant pain.

44. In May 2021, the offender was admitted to Manning Base Hospital due to concerns from his family. In the notes and discharge report, the offender was diagnosed with drug induced psychosis and was very agitated and required antipsychotic medication on two occasions. He had paranoid ideas about being framed for murder, as well as delusions and hallucinations. The offender absconded from the ward a few days later.

45. Ms Edwige found that the offender has complex developmental trauma, caused by his exposure to cumulative traumas over his lifespan. This has caused him significant psychological stress.

46. Ms Edwige opined that the offender meets the diagnostic criteria for Unspecified Trauma – and Stressor – Related Disorder, Stimulant Use Disorder, and Persistent Depressive Disorder with Anxious Distress, and was suffering from these conditions at the time of the offending. Ms Edwige found that these diagnoses would have significantly impacted the offender’s decision-making, behaviour and emotional regulation at the time of the offences.

47. The offender expressed remorse to Ms Edwige, recognising the impacts of his behaviour on the victim, as well as his own family. He stated that if he had known that there were children in the house, he would not have committed the offences.

Objective Seriousness

48. The offences involve limited objective gravity.

49. The break and enter offence involved some planning. The offender had taken a screwdriver with him and was wearing gloves. The offender jumped the fence and entered through a closed but unlocked sliding door. The value of the property taken was not significant. There was no damage occasioned to the property. The incursion was for a relatively short period of time. The offence took place in the early hours of the morning. The circumstance of aggravation relied on by the prosecution was that the offender entered the premises knowing that there were persons inside. In fact, there was the victim, his wife and 3 primary school age children. The offender had no interaction with the victims. The offender was in company of the co-offender but did not act in reliance on that circumstance in the usual way.

50. The Audi was stolen using the key taken from the house. The offence was opportunistic and probably not planned. The offender drove the vehicle away from the scene and later on that day. The vehicle’s value was significant. It was located by police one week later outside the co-offender’s address. The vehicle was not damaged and returned to the victim.

51. The offender had a deprived upbringing, marred by violence, abandonment, unstable accommodation, deprivation of food and a lack of emotional nurturing. He was sexually abused and racially vilified. He was sent to boarding school where he did not fit in and was socially isolated. He began to use drugs at a young age when he did not have the capacity to make an informed choice. His drug use has had a significant impact on his mental health causing him delusions and hallucinations as well as making him paranoid. In all of the circumstances, his moral culpability for the offences is significantly reduced.

52. I have taken into account the maximum penalty for the offences and the relevant standard non-parole period.

Deterrence

53. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment.

54. There is a need for specific deterrence. The offender has a criminal history and must realise by reference to the penalty imposed that if he continues to commit offences that he will meet with significant punishment.

Aggravating Factors

55. The offences were committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

56. The offences were committed while the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The offender was on a 12 month Conditional Release Order for larceny and possession of a knife in a public place that was entered into on 6 July 2021 at the Taree Local Court.

Mitigating Factors

57. The injury, emotional harm, loss or damage caused by the offence was not substantial: s 21A(2)(a) Crimes (Sentencing Procedure) Act 1999.

58. The offender does not have any significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). His juvenile record is of less weight and his record as an adult is not of much significance. The law recognises that young people have the capacity to mature and reform themselves.

59. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has entered into a serious relationship with a supportive partner who does not use drugs. They are expecting a child and the offender has expressed a desire to reform his ways for the benefit of the relationship and the child. He has expressed a willingness to engage in psychological treatment and drug rehabilitation. He now has stable accommodation with his partner and an offer of work from her brother. He wants to continue a strong connection to his Aboriginal culture and to continue with his art which are also protective factors.

60. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated insight into his actions and accepted responsibility for them. He has expressed remorse to the psychologist and to the Court. His plea of guilty also indicates remorse.

61. I have taken into account the impact of the restrictions placed on prisoners in New South Wales in response to the COVID-19 pandemic. I accept that by reference to those restrictions and his mental illness that the offender’s time in custody has been onerous.

62. The offender was only 19 at the time of the offences. I am satisfied that his significant life disadvantage and mental condition made him emotionally and psychologically immature. In those circumstances, general deterrence, retribution and denunciation can be afforded less weight and more weight should be given to rehabilitation.

63. The offender has been in custody for these offences for the periods of 15 December 2021–20 June 2022 and 2 November 2022 to 11 May 2022; a combined total of 12 months and 16 days.

Penalty

64. I have had regard to s 5 Crimes (Sentencing Procedure Act 1999) and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

65. Joseph Donovan is convicted.

66. I will deal with the offender by imposing an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The appropriate aggregate term of imprisonment is 2 years and 6 months. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Sequence 3 – 2 years with a non-parole period of 1 year;

• Sequence 4 – 15 months.

67. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the reasons I have already given and the following additional reasons, including by returning the purposes of sentencing in s 3A.

68. Community safety is best provided for by affording this offender an opportunity to rehabilitate himself in the community. For the first time, he has stable accommodation and reasons to rehabilitate himself to provide for his child. He is willing to engage in interventions and has a job to go to. Out of the two options of sending him back to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].

67. The offender has spent about 12 months in custody solely referable to these offences. The imposition of a further lengthy ICO will restrict the offender’s freedoms and serve as punishment for and denunciation of the crime.

68. I impose an aggregate term of imprisonment of 18 months to take into account the offender’s pre-sentence custody referable to these offences because an ICO cannot be backdated.

69. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (11 May 2023) and expire on 10 November 2024.

70. The offender must report to the Mt Druitt Community Corrections Office on or before 4pm on 18 May 2023.

71. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

74. The following additional conditions apply:

1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

2. the offender must receive treatment for drug rehabilitation, including by submitting to random drug testing as reasonably directed by Community Corrections;

3. the offender must receive treatment for his mental health as reasonably directed by Community Corrections;

4. the offender must not associate with Brendon John McLeod.

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Decision last updated: 12 May 2023