R v Doolan (No 2)

[2023] NSWDC 600

District Court

New South Wales

Medium Neutral Citation:

R v Doolan (No 2) [2023] NSWDC 600

Hearing dates:

6 October 2023 and 7 December 2023

Date of orders:

7 December 2023

Decision date:

07 December 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 2 years 11 months with a non‑parole period of 1 year and 8 months

Catchwords:

CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation — Offences committed while on parole — Failure to keep to conditions of s 11 bail

SENTENCING — Penalties — Imprisonment — Intensive Correction Order not imposed — Community safety

SENTENCING — Mitigating factors — Pleas of guilty

SENTENCING — Subjective considerations on sentence — Age of offender — Childhood deprivation — Abused in juvenile custody — Long history of offending — Institutionalisation — Mental illness — Special circumstances

SENTENCING — Relevant factors on sentence — Form 1 offence — Serious offending but near bottom of range

Legislation Cited:

Crimes Act1900 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Hoskins v R [2021] NSWCCA 169

Jackson v R [2010] NSWCCA 162

Jinnette v R [2012] NSWCCA 217

Kentwell v R (No 2) [2015] NSWCCA 96

Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327

R v Doolan [2023] NSWDC 472

R v Doolan (No 2) [2010] NSWSC 194

R v Fernando (1992) 76 A Crim R 58

R v Hookey [2018] NSWCA 147

R v Huynh [2005] NSWCCA 220

R v Lewis [2014] NSWSC 1127

Veen v The Queen (No 2) [1988] HCA 14

Category:

Sentence

Parties:

Leaum Doolan (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
T McKenzie (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
J Azard for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/336940

JUDGMENT – Ex tempore revised

1. Leaum Doolan is before the Court today for sentence for two serious offences:

• Aggravated Break and Enter: s 112(2) Crimes Act1900 (NSW); and

• Break and Enter Dwelling and Steal: s 112(1) Crimes Act.

2. There is a related matter of Take and Drive a Conveyance, the result of the second burglary, I will take it into account on a Form 1: s 154A(1) Crimes Act.

3. Doolan was released to parole shortly before the commission of these offences on 9 September 2022. His response to parole was not good.

4. On 7 November 2022 a man living in Thirroul saw a man, later identified as Doolan, attempting to enter his garage. The man made some excuses for being there and then left. But soon after the owner noticed his garage keys were missing. He also saw that his garage was partly open. The keys were never recovered.

5. On the same day a woman locked up her home in Helensburgh and left for the day. On her return she found that her premises had been broken into. Her car keys and some cigarettes had been taken. The keys were then used to take her Mercedes Benz vehicle parked near the house.

6. A police investigation of CCTV footage showed that the offender caught a train from Thirroul to Helensburgh. He was then seen driving the Mercedes Benz.

7. Doolan was arrested on 18 November 2022. He remained in custody until I granted him bail on 6 October 2023. He was on parole when these offences were committed. He served the balance of that parole. He also served a 3 month non-parole period of a Local Court sentence imposed during that time.

Seriousness

8. The Court has to assess the seriousness of every offence. In the formulation of sentence there is no need to attribute a particular mathematical value to matters regarded as significant. Judges are not required to classify the objective seriousness of the offending, but they must identify fully the facts of the matters and circumstances which bear on any judgment, both as to the objective seriousness and other relevant matters, to enable a proper assessment of the sentence imposed, and its appropriateness: R v Huynh [2005] NSWCCA 220. A staged approached to sentencing is not generally appropriate.

9. Sentences must be proportionate and proportional to the seriousness of the offence and the harm caused to individuals and the community. The maximum penalties proscribed are one guide to the exercise of the court’s sentencing discretion. A s 112(2) Crimes Act offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years. Content should be given to that standard non-parole period. A s 112(1) Crimes Act offence carries a maximum penalty of 14 years imprisonment.

10. In both cases, premises were entered. In both cases, the offender’s objective was the same; to get car keys so that the car could be taken. In both cases, only the car keys were stolen, a considerable inconvenience of itself. But in the second offence the offender’s objective was realised; the matter that is taken into account on the Form 1. Although I do not sentence for that matter, I must take it into account when I come to assess the seriousness of that offence. Here it leads to greater weight being given to community protection and specific deterrence in accordance with the guideline judgment of the Court: Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327.

11. Both offences occurred during the day, but the first offence also involved confrontation with someone who was home at the time. If you break into someone’s house or enter someone’s house and there is someone there, things can get out of control. Thankfully Doolan retreated. Thankfully the homeowner was, I suspect, too shocked to do anything.

12. I do not have any Victim Impact Statement before me, but it takes little imagination to know how people would feel to know that a stranger had entered their house. In the first offence while they were by their pool. For the second, they were at work. The community rightly expect judges to treat these matters with proper seriousness and impose appropriate penalties. That said, when one looks at the range of matters, particularly those that could be encompassed by the aggravated offence, these matters fall towards the bottom of the type of matters in sentences imposed. Other matters have to be taken into account, including the background of the offender.

Subjective case

13. Doolan was born in June 2000. Most of his life as a teenager and as a young adult was spent in custody. Since he turned 18, he has spent six months of the last four and a half years in the community. His time in juvenile detention was blighted by what, to a civil standard, appears to have been unlawful treatment causing him harm. His responses to imprisonment and childhood exposure to domestic violence are reflected in a chaotic, and frankly, dangerous lifestyle.

14. During his early life he required considerable intervention by government agencies. He was exposed, I am prepared to find on all the material exhibited before me, to extreme examples of drug abuse and violence. A younger brother was killed by his mother. She was found not guilty on the grounds of mental illness: R v Doolan (No 2) [2010] NSWSC 194.

15. He has a custodial E (escape) classification, which makes his time in custody even harder than others, even others with his background. He is not a compliant prisoner. He has a poor custodial history. He has extensively and consistently used illicit drugs, mainly methylamphetamine, since he was too young to make rational choices. His physical health is not good, reflecting his history of neglect and deprivation. He has very little trust in the system. He responds aggressively if challenged. He also has trouble complying with the rules when he is out in the community. He has trouble complying with the rules when he is back in custody.

16. When he was before me on the last occasion, I granted Doolan strict conditional bail. There was accommodation available to him. There was a community based program that could be put in place, with NDIS assistance. I was frank with Doolan. I told him I was not optimistic, but I believed an effort had to be made: R v Doolan [2023] NSWDC 472. He breached his bail.

17. Today he gave an apology to me, which I accept, for breach of the bail orders. My biggest concern is not disrespect, but my regret that further offending appears to have occurred. Someone else in the community had to bear the burden of having their house entered.

18. I will not punish him for his failure. The punishment for the recent offending is for another court. Doolan told me he just could not handle life on the outside. He was not on the medication that he needed. He said he committed an offence because he desperately wanted to get back to gaol.

19. I reminded Doolan that he could have just surrendered himself and not offended against someone. But the evidence before me, means he should not be judged to the same standards as those who have had a crime-free, domestic violence-free, abuse‑free childhood. His moral responsibility for his offending must be reduced because of the inextricably interrelated impacts of childhood deprivation, childhood trauma and related mental health issues.

20. I told him on the last occasion that my calculation of an appropriate sentence could lead to an aggregate of less than 3 years. The community safety requirement meant that I could not, at that time, impose an Intensive Correction Order: s 66(1) Crimes (Sentencing Procedure) Act 1999. I needed more evidence and he had to be tested in the community. He failed that test, but as I said I do not punish him for that failure. I note again that we have no Drug Court programs in the Illawarra and are not likely to get any.

21. There should be some independent punishment for the Local Court matter and the matters that led to the breach of parole. To give him full credit for time served, this sentence should be backdated to 6 April 2023.

22. Each indicated sentence will be reduced by 25% to reflect the utilitarian value of his early guilty pleas. I will take care that the process of accumulation does not erode that benefit.

23. There must be some accumulation here, two people’s homes were violated even though they did occur as part of a course of conduct on a single day.

24. The offence was serious, although I have to deal with many more serious examples of both offences. But where someone is confronted in their own home, there was always a risk that the confrontation will escalate. I do not underestimate the impact on members of the community having their homes entered and property taken. I remind myself that I do not sentence for the car that was taken.

25. Since he was 12 years old, Doolan was reportedly subject to extreme discipline in detention. That he was on parole is an aggravating feature and weight has to be given to his criminal record.

26. At the same time, it is clear that continuous periods of custody have helped form the man for sentence. While I give full weight to those considerations that mitigate sentence, they do not mean he bears no responsibility for his crimes, nor does it mean that no weight is given to retribution or personal or general deterrence. Those important purposes of sentencing still require my consideration.

27. Doolan is capable of understanding that he must take some personal responsibility for his crimes. He does understand that he will be punished if he offends. That said, I repeat what I said when I released him last time, every effort must be made to provide him with support on release. He is, as he told me, institutionalised, but it is in both the community’s and the offender’s interests that there be at least the opportunity for supervision on parole and assistance on parole despite persistent breaches. Institutionalisation, even in the face of entrenched and serious recidivism, can, and here does, warrant a finding of special circumstances: Jinnette v R [2012] NSWCCA 217 at [103]; Jackson v R [2010] NSWCCA 162 at [24].

Synthesis

28. There is, in synthesising all these matters, a conundrum. Doolan continues to offend against the community, justifying his removal from the community. But gaol and juvenile detention has had a profound and negative impact on him. Gaol has compounded his complex mental health struggles, which are further exacerbated by his history of polysubstance abuse. His psychologist, Ms Sears, notes he is less trusting and less amenable to intervention.

29. I cannot detain him for longer than his crimes justify. Sentences must be proportionate to the criminality of what was done: Veen v The Queen (No 2) [1988] HCA 14. When he was last in the community, the Australian Mentoring Service, with help from the NDIS, accepted him as a client into one of their houses, where he was given support. He has had a chance to see a doctor and a psychologist, but he was impatient, he does not have the skills to engage in forward thinking.

30. In cases such as this, while there must be additional punishment, the answer is not, longer and longer periods of incarceration, it lies in actions designed to attempt, so far as possible, to neutralise or reverse the effects of social exclusion, disempowerment, discrimination and the violent environments in which he presently lives and has lived all his life: R v Hookey [2018] NSWCA 147 at [61]; Kentwell v R (No 2) [2015] NSWCCA 96 at [89] to [92]; R v Lewis [2014] NSWSC 1127 at [37] to [38].

31. This does not mean I cannot take into account, as I must, all relevant factors. The Bugmy and Fernando principles do not all favour mitigation: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Fernando (1992) 76 A Crim R 58. A Court has to recognise there are countervailing factors, predominantly protection of the community. But while the community is protected when Doolan is in custody, his crimes do not justify continued detention and he has to be released. This puts the judge in a difficult position.

32. Noting all these factors does not really help determine the actual sentence. Justice Basten in Hoskins suggested that the best course in such situations “may be to err on the side of leniency”: Hoskins v R [2021] NSWCCA 169.

33. If you keep offending Mr Doolan, a time will be reached where longer and longer sentences will be imposed on you. I ask that rather than focus on any concern for my feelings you try and think about the impact of your crimes on others. I hope as you mature, that you leave gaol better equipped to take responsibility for your own actions. You must work with your service providers when you get out. You should cooperate with the parole authority. I really do not want to see you appearing before me on a regular basis because it will mean that you have offended against others, and my main job is to protect others.

Orders

34. Taking all those matters into account. Although the s 112(2) Crimes Act offence has a higher maximum penalty, the Form 1 was taken into account on the second matter. I indicate a sentence of 2 years 6 months for each offence. For the s 112(2) Crimes Act matter I indicate a non-parole period of 1 year and 5 months.

35. There will be an aggregate sentence of 2 years and 11 months imprisonment. The sentence will commence on 6 April 2023. There will be a non‑parole period of 1 year and 8 months, from 6 April 2023 and expire on 5 December 2024, on which date you will be eligible for release. There will be a non-parole period of 1 year and 3 months to date from 6 December 2024 and expire on 5 March 2024. The earliest release date is 6 December 2024.

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Decision last updated: 15 February 2024