R v Dowd

[2018] NSWDC 459

District Court

New South Wales

Medium Neutral Citation:	R v Dowd [2018] NSWDC 459
Hearing dates:	7 December 2018
Decision date:	10 December 2018
Jurisdiction:	Criminal
Before:	Judge King SC DCJ
Decision:	Convicted. Special circumstances found – 1st significant period in custody, need for a longer period of supervised parole to assist in reintegrating in the community and drug rehabilitation. Form 1 matter – SEQ 3 - taken into account on sentence imposed in respect of Count 1. Indicative sentences: Count 1 [SEQ 4]: Imprisonment for 2 years and 6 months Count 2 [SEQ 1]: Imprisonment for a total term of 4 years with a NPP of 2 years and 6 months Aggregate sentence: Sentenced to a total term of imprisonment for 5 years, comprising of a NPP of 3 years to commence on 14/1/17 and to expire on 13/1/20, and a balance of term of 2 years to commence on 14/1/20 and to expire on 13/1/22. Eligible for release to parole on 13/1/20.
Catchwords:	CRIMINAL – sentence - robbery in company - aggravated break and enter & commit serious indictable offence, armed – intimidation – resist arrest – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina Nathan Dowd
Representation:	Counsel: Defence: Ms J Levick   Solicitors: Crown: Mr S Fleigner
File Number(s):	2016/00376161

Judgment

1. HIS HONOUR: Nathan Dowd appears for sentence in respect of two offences:

1. On 14 December 2016, at 3/57 Mirrabooka Crescent, Little Bay, in the State of New South Wales, he did rob Carly Woods of certain property, namely, an Apple iPhone, whilst being in the company of another person, contrary to s 97(1) of the Crimes Act 1900. The maximum penalty provided is 20 years imprisonment. There is no relevant standard non-parole period.

2. On the same date and at the same premises, he did break and enter the house of Carly Woods, and then in the said house, did commit a serious indictable offence, namely, intimidation in circumstances of aggravation, namely, he was armed with an offensive weapon, being a large knife contrary s 112(2) of the Crimes Act 1900. The maximum sentence provided is 20 years’ imprisonment and there is a standard non-parole period provided of five (5) years.

2. When being sentenced in respect of the offence of aggravated break and enter, he asks the Court to take into account a further offence contained on a Form 1 pursuant to s 32 of the Crime (Sentencing Procedure) Act 1999. That offence is an offence of resisting arrest on 15 December 2016, which in the ordinary course of events would be dealt with in the Local Court.

The facts are agreed, and are as follows:

3. The 26 year old offender and the victim, Carly Woods, have known each other for many years. The offender had been to the victim’s house on a number of occasions. The offender was living with his partner on Mirrabooka Crescent, Little Bay, the same street as where the victim lived. The victim resides with her eight year old daughter, although her daughter was not present at the time of the offending.

4. On 14 December 2016, the offender was awakened by the co-offender and the victim, and invited to the victim’s house. The offender and the victim were consuming intoxicating substances at her house.

5. At about 6.30pm, the offender, co-offender and victim were at Maroubra Beach. The offender and co-offender asked the victim to drive them to Randwick to pick up another person. The victim refused, but offered to drive them to her house, which they accepted. The victim made this offer knowing that the offender lived on the same street.

6. The victim dropped them off in her driveway. She parked the car and noticed the men standing at her front door. She unlocked her front door and they immediately pushed past her and walked inside the apartment.

7. The victim, the offender and the co-offender went back to the victim’s house to continue to consume intoxicating substances after the victim had borrowed $100 from the offender. The victim told the offender that she would return the money when they arrived back at her house.

ROBBERY IN COMPANY

8. The victim asked them to leave. They moved from her lounge room to her courtyard, arguing as she again asked them to leave. The victim was intimidated, and in fear with the two men in her apartment against her wishes.

9. The offender then walked back inside the apartment and out the front door. The victim went inside and checked her bag which had been within her immediate control during her interactions with the offenders. She immediately noticed her iPhone 6 and her set of keys were missing. She believed that the offender had taken her phone and keys, so she chased after him out of her apartment.

10. When the victim was halfway down the street she realised that the co‑offender was still inside her apartment and so she returned. She entered her apartment to find him placing items of hers in his back pack. She said “What are you doing? You are stealing my stuff. Someone has got my phone and keys and I want them back”. The co-offender then left through the front door. The victim walked after him and told him she was reporting him to the police.

11. The victim returned inside and noticed her iPad was also missing. A few minutes later the victim heard banging on her door. She looked through the window and saw both men at her front door “trying to get in”. The victim said “I’m not letting you back in. Leave the phone on the doorstep”. She could see the offender was holding her iPhone in his right hand. The offender responded “Well, you don’t get it back then”.

12. She saw the men leave and noticed they did not leave her phone behind. She walked down her driveway after them and saw the offender still holding the iPhone. She called out to him to give it back. She saw the offender throw the phone into a garden bed and continue to walk away. The co‑offender then picked up her phone and she again told them she would call the police. He responded “I don’t care, you dog”.

AGGRAVATED BREAK AND ENTER

13. Later that evening, about 10.50pm, the victim heard a smashing sound on her front window and banging on the door. The victim remained quiet inside her unit with the lights turned off. The victim’s next door neighbour also heard loud banging, causing his dogs to start barking. He went outside to investigate and saw the offender climbing up the side of the unit towards the victim’s balcony. The neighbour yelled out for him to get down and the offender continued climbing. The neighbour saw the offender place an object onto the balcony ledge that sounded like metal when he put it down.

14. The victim heard the neighbour yelling and ran to the balcony door. She saw the offender run across her balcony carrying a large butcher’s knife in his right hand. The offender forcibly opened the closed but unlocked glass sliding door and entered the unit. He stood about 30 centimetres from the victim, still holding the knife in his right hand.

15. The offender was agitated and yelling loudly “Where’s my mate?” The victim stated that she had not seen the co-offender since he had left her apartment earlier that evening. The offender said “Are you lying to me?” The victim replied “No. I will never let him back in here. I’m telling you the truth, you have to leave”. The offender said; “I’ll leave through the front door”. The victim replied “No, go back the way you came”. The offender then lifted the knife from his side pointing it at the victim and said “I’ll take the front door”. The victim moved out of the way and informed the offender that she was calling Triple‑0. The offender ran out the front door of the unit.

16. Meanwhile. the neighbour had phoned Triple-0 and in that call stated “A man has just smashed his way into my neighbour’s flat and I can hear them shouting”.

17. The victim immediately phoned Triple‑0 and identified the offender by name and stated:

“He came into my house over the balcony with a big knife.

He’s holding a knife at me.

Nathan said he’s looking for him, but he’s holding a knife at me while he’s saying it. I said you can’t come in and he just did”.

With reference to the earlier incident she said:

“They robbed me. They robbed my, my, my iPad and my phone. That’s why they’ve taken it from my house...they took that a few hours ago.

They’ve got my keys, my phone and my iPad...they’re drinking and they came here and I didn’t want them here.

And ‘cause they were agro I was like youse have to go, youse have to go and um, they wouldn’t go.”

18. At no time did the victim give the offender permission to enter her unit that evening. Police arrived a short time later and obtained a statement from the victim. The following was recorded on the officer’s body worn video recording:

“He was smashing on the door...I’m here by myself, he was smash, smashing on the door. I had all the, like lights shut because I knew.

He had a knife like that I couldn’t believe it.

…I panicked because he was like right near me with it”.

19. With reference to the earlier incident she said:

“And he’s looking for my mate. He was like where is he. I said he left when you both left...

And ‘cause you were agro I was like youse have to go, youse have to and um they wouldn’t go and I was like...and I was like...it’s like youse are intimidating...I said look I have to call the police and they’re calling me a dog...

Then they’d run off down the road and that’s been like two hours ago and then I realised my phone was gone and then my iPad’s gone and then my car keys as well…

Nathan moved down there so I...’cause I chased Nathan out and I was like ‘Where’s my phone. You’ve got my phone” and while I chased him out the co‑offender was robbing me.

Yeah and he’s disappeared and then...They left, but.

They stole my stuff”.

RESIST ARREST

20. The following morning, 15 December 2016, at about 9.15am, police were making enquiries at 57 Mirrabooka Crescent, Little Bay. The offender walked past with his partner and her two children. Police approached and stopped the offender showing their identification and told him he was under arrest. The offender stated “This is bullshit”, “You can’t arrest me”. The offender took two steps backwards and before the police could grab him, he turned and started running away.

21. A police officer chased the offender, although ultimately he lost sight of him. About 20 minutes later, during a search of the bushlands in the canal of Conrad Way, police found the offender hiding under the bridge on Esperance Close. Police directed the offender not to move. The offender stated “Okay, you’ve got me”. The offender was again informed of his arrest and cautioned.

22. The offender was handcuffed, searched and conveyed back to Maroubra Police Station. The offender participated in an electronically recorded interview in which he declined to answer questions about the incident, as was his entitlement.

23. I note that the robbery in company charge in respect of this offender relates only to the Apple iPhone and not to the keys or iPad, and that he had in fact departed before the co-offender was observed to be placing items in his back pack. There is no information before the Court as to any of the stolen property being returned, whether it be the Apple iPhone, the iPad or the set of keys, or subsequently located by the police and returned. There is no evidence as to the value of any of the items. No submission has been made as to the recovery of the Apple iPhone.

24. The facts cryptically refer at paragraph 2 and paragraph 5 to the offenders and the victim, or at least the offender and the victim consuming intoxicating substances at her house. The victim during her Triple-0 call referred to the offender and co-offender as drinking. When the Court enquired as to what was meant by the reference to intoxicating substances and whether it was limited to alcohol, it was indicated that it was not so limited and that it was a cryptic reference to prohibited drugs and alcohol. The reason why the prohibited drug or drugs were cryptically referred to, I was informed by Mr Feigner on behalf of the DPP, was because it may have been of some embarrassment to the victim in relation to her fear of the authorities in relation to her eight-year-old daughter.

25. Why the Agreed Facts were presented in a deceptive fashion to protect the victim, I do not know. The facts would not be relevant, in my view, to the authorities in relation to her custody of her daughter. I enquired of the parties as to what the prohibited drug was. It was indicated by Ms Levis, counsel for the offender, that she thought the reference was to MDMA, however, she accepted that as being an appropriate comment when it was suggested by the Court that the facts in terms of the conduct were perhaps more consistent with methylamphetamine or “ice”.

26. In the intervening period I have more carefully examined the material before me on sentence, and I note that in the offender’s letter to the Court dated 28 November 2018 includes the following sentence, “Through my decision on that day to drink and take ice, I have placed her in a dangerous and scary situation”.

27. The consumption of ice by the offender, together with any co-offender and the victim, may provide some explanation of the aggravated break and enter, but does not in any way mitigate the seriousness of that offence. There is, of course, an element of the bizarre in relation to the aggravated break and enter.

28. As to the objective seriousness of the offences, in respect of the offence of robbery in company, the offender while in the company of a co-offender seized on the opportunity to rob a person who was well known to him and whose premises he had attended on a number of occasions in the past. She was entitled to expect that when, having invited him to attend her home, he would not take the opportunity to rob her of her iPhone 6 on departure. It would appear in the circumstances to have been at least a relatively spontaneous offence rather than a premeditated offence, noting of course that it was the victim who had offered to drive them to her house, and although she may have only anticipated dropping them there so that the offender and co‑offender could go to the offender’s house, she permitted them to enter, wherein they consumed the cryptically referred to intoxicating substances.

29. While technically it may be a robbery in company, it seems on the facts that the offender and the co-offender essentially operated independently, the offender first stealing the iPhone and the co-offender, once the offender and the victim had departed, taking the opportunity to steal her iPad. Although she requested its return when refusing to let them re-enter the house, and it was the offender who said, “Well, you don’t get it back then”, he at least ceased control of it by throwing it into the garden bed and continuing to walk away. It was the co-offender who then picked up the phone and responded to her request by saying, “I don’t care, you dog”.

30. The robbery occurred absent of any threat or force, and in the circumstances, I find that the objective seriousness of the offence falls towards the lower end of the range of seriousness for such an offence. I note that there is no evidence that this offender was aware that the co-offender, in his absence, had taken the iPad.

31. As to the aggravated break and enter, it appears that the offender returned seeking to locate the co-offender from the earlier offence rather than to commit any more serious offence against the victim other than intimidating her as part of his attempt to locate the previous co-offender.

32. It must have been of significant concern to the victim, having had her phone, keys and iPad previously stolen by her guests, that the offender returned and, after failing to get her to open the door by banging on the front window and door, elected to climb up the side of the unit to the victim’s balcony while she was inside, remaining quiet and with the lights off in order to avoid him. Having reached the balcony, the victim had run to the balcony door and observed the offender running across her balcony carrying a large butcher’s knife in his right hand. That sight itself must have been significantly terrifying to her. He then forcibly opened the closed but unlocked glass sliding door and entered the unit. He was in her immediate presence, some 30 centimetres from her, still holding the knife in his right hand, demanding to know where his mate was and apparently disbelieving her responses. At one stage he actually pointed the knife at the victim, which must have substantially increased the victim’s fear as to what might then occur.

33. I note in respect to the offender’s conduct at this stage that it has certain bizarre characteristics perhaps consistent with a drug-induced paranoid psychosis, although I note that there is no assertion in the material before me that he was, in fact, suffering from any such psychosis. The offender’s conduct was, however, significantly serious in relation to his means of entering the premises although it did not cause damage, and the threat and intimidation evidenced by the presence of what is described as a large butcher’s knife presented at her.

34. I am of the view that in relation to the aggravated break and enter offence, taking into account that the serious indictable offence referred to was intimidation rather than any more significant offence, that the conduct falls below the midrange of objective seriousness, although not at the lowest end of the range.

35. As to the offence of resist arrest, I will simply note that the resistance was as a result of him running off and hiding after police officers had identified themselves and informed him that he was under arrest. His resistance, by running away and hiding, lasted for a duration of approximately 20 minutes, when he then surrendered when discovered hiding under the bridge. Taken into account as a Form 1 offence, it must have some effect in relation to the sentence imposed for the aggravated break and enter and commit serious indictable offence while armed, but in my view, not a substantial effect.

36. The Crown sentence summary as presented to the Court refers to the offender as having been committed for sentence on 24 July 2017 from the Central Local Court. That is the only information contained as to the progress of the matter on the Crown sentence summary.

37. During the course of submissions, Ms Levis, on behalf of the offender, submitted that a discount of 20% would be appropriate in the circumstances. That was inconsistent with the usual and ordinary submission made by counsel or legal representatives on behalf of accused persons where a plea is entered in the Local Court that the discount for the utility of the plea should be 25%. When the Court asked why the submission was that the utility discount should be 20% in those circumstances Ms Levick indicated that she would accept 25%. However, the Crown then disclosed for the first time material that should have been disclosed as part of the Crown sentence summary.

38. What was then disclosed was that although the plea of guilty had been entered on 24 July 2017 at Central Local Court, and the offender committed for sentence, on 6 December 2017 when the matter was before the District Court the offender did not adhere to his plea. The matter was then listed for trial to commence on 2 July 2018. Discussions on that day resulted in the offender adhering to his earlier pleas, that is, on the first day of the trial, 2 July 2018, the plea of guilty was, in effect, re-established. I note that Mr Fliegner on behalf of the DPP appeared to be accepting on behalf of the Crown that a discount of 25% for the utility of the plea, or perhaps 20%, would be appropriate.

39. As indicated to the parties at the time that is a submission that I regard as being totally inappropriate. When a matter has been listed and prepared for trial and the trial date is reached, all the work has been done to ensure the matter can proceed as a trial. There is effectively little utility left in a plea of guilty. However, I will allow what I regard as the appropriate discount for the utility of the plea alone in those circumstances, being a discount of 10%.

20. It is of serious concern to the Court that it was only during the course of submissions that the real sequence of events involved in the plea of guilty was disclosed for the first time, and only as a result of the submission made by defence counsel and the Court’s inability to understand why a discount of only 20% was being sought. Both parties had a duty to disclose the real facts to the Court and, in particular, it is incumbent on officers of Director of Public Prosecutions Office to ensure that the Court is not misled, particularly in relation to a significant aspect such as the value of a utility discount.

SUBJECTIVE MATTERS

41. The offender, having been born in September 1990, is now 28 years of age. He did not give evidence on sentence, although a letter dated 28 November 2018 from him was tendered without objection.

42. Before the Court is the offender’s past criminal history; a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report; a Sentencing Assessment Report under the hand of Nikki Manaena, dated 6 December 2018; a series of psychological reports from Mr Watson‑Munro, being two reports, dated 14 July 2014, prepared in relation to previous offending in respect of which the offender has already been sentenced, and a report of 6 December 2018 prepared specifically for the purpose of these sentence proceedings, being Exhibit D1. Exhibit D2 contains the letter from the offender; a letter from Debra Dowd, the offender’s mother, dated 4 December 2018; a letter from Nathan Hill, a friend of the offender’s, dated 4 December 2018; a letter from Traci North, a friend of the family for some 20 years; a Mr K Scott, dated 27 November 2018, a director of Archiebolds Carpets Pty Limited; a letter from Keith McCraw, dated 28 November 2018, President of South Sydney District Junior Rugby League and chairman of the Junior’s Group of clubs for the past 14 years, familiar with the offender from his past sporting activities; a letter from a Dr Tass James, dated 15 November 18, addressed to Chris Alexander, who I understand is a psychologist, requesting that when the offender is released he provide assistance to the offender in respect of impulse control and anger management.

43. In addition, the offender’s father, Paul Dowd, gave evidence on sentence as did the offender’s mother Debra Dowd. I accept that both Mr and Mrs Dowd in their evidence expressed sincerely held views in respect of their son. However, as is always evident, parents have a substantial investment in the lives of their children and a strong desire to wish for the best outcome, which, unfortunately, frequently colours their views. I note and accept that both his parents, and other members of the family, support him and will continue to support him.

44. His criminal history indicates that his first offending was as a juvenile shortly before his 18th birthday, being a single offence of intentionally throwing an object at a vehicle or vessel risking safety. He received a s 33(1)(B) bond of 12 months with Juvenile Justice supervision. There was no further offending until he was an adult, commencing in October 2008: never licensed person drive vehicle on road, first offence; December 2008, larceny value less than $2,000. In respect of each of those offences, he received, variously, bonds under s 10 or s 9. His offending continued some four years later in May 2012, hirer not pay authorised fare on termination of hiring, assault occasioning actual bodily harm, in respect of which he was fined in each case. In April of 2013, there were offences of shoplifting, value less than $2,000, and enter enclosed lands, not prescribed premises, without lawful excuse. For the shoplifting, he received a Community Service Order of 50 hours and a fine of $100 in relation to enter enclosed land. However, in respect of the shoplifting offence, he was called up in July of 2014, and received a sentence of imprisonment for one month. There was a further offence of enter enclosed lands in July 2013 in relation to which he received a fine. Nine days after that offence, he committed a further offence of behave in an offensive manner in or near a public place or school, resulting in a fine, as well as on the same date an offence of excluded person re-enter vicinity of licensed premises for which he was also fined. It is reasonable to presume that each of those offences were committed while affected by alcohol. In October 2015, there were offences of shoplifting, value less than $2,000, and custody of a knife in a public place. He received a bond of 12 months for the shoplifting pursuant to s 9 and a fine of $100 in respect of the knife. In October 2016 on the same date, there were offences of driving while licence expired two years or more before, first offence; refuse or fail to submit to a breath test; class A motor vehicle exceed speed more than 20 kilometres. In relation to each of those three offences he received a s 10A conviction with no other penalty. There was a further offence committed on the same date as those three offences but not dealt with until later, presumably because it was defended. It was dealt with in June 2017, it was refuse or fail to submit to a breath analysis, first offence, in respect of which he received a $1,000 fine and a disqualification of six months and was required to participate in the Interlock program for 24 months. In January 2014 he was charged with possess prohibited drug, in respect of which he eventually received a s 10A conviction but no other penalty.

45. I have previously referred to a report of Mr Watson-Munro dated 14 July 2014. That report was in respect of offences committed on 9 March 2014, being larceny value less than $2,000, assault occasioning actual bodily harm, being two counts, assault officer in the execution of duty and resist officer in execution of duty. In relation to the larceny, he received a 12 month s 9 bond with supervision. In relation to the two counts of assault occasioning actual bodily harm, imprisonment of three months and 15 days, suspended on entering a s 12 bond for the duration of the suspended term. As to the assault and the resist charges, he received one month’s imprisonment, suspended in each case pursuant to s 12.

46. On the same date as the robbery in company and the aggravated break and enter and commit serious indictable offence were committed, the offender was also charged with an offence committed that day of dishonestly obtaining a financial advantage by deception. That matter was dealt with at the Downing Centre Local Court on 19 April 2017. He received a sentence of imprisonment of nine months, again the subject of a suspension, on entering into a bond with supervision under s 12 for the duration. I note, however, that he was arrested in relation to the offences before me on 15 December 2016, and has been in custody since that time. Accordingly, the sentence imposed for the dishonestly obtaining financial advantage on 19 April 2017 was entirely concurrent, as a result of the suspension, with his bail refusal in relation to these matters.

47. Evidence has been given by the offender’s parents that they believe that he has significantly changed while in custody, that he is now no longer a user of prohibited drugs. I note, however, that the New South Wales Department of Corrective Services Convictions, Sentence and Appeals Report appears to be incomplete. Although dated 14 November 2018, it includes no reference to any breaches of prison regulations. The Sentencing Assessment Report, however, under the heading “Response to Supervision” refers to him having had two previous periods of supervision with Community Corrections which were completed satisfactorily, however, that in April 2017, when in custody, he returned a urinalysis result that tested positive for buprenorphine. The Community Corrections officer, in my view, would be unlikely to record as to his substance use that he had tested positive for buprenorphine whilst in custody, if it had in fact been prescribed for him. There is no evidence before me that it had been prescribed for him. The report also includes that he returned a urinalysis result that was negative for illicit substances, but that he had also refused to supply a sample for testing on another occasion.

48. His criminal history records an offence committed on 24 March 2017 of possess prohibited drug. However, on 24 March 2017 he was still in custody as a result of his arrest on 15 December 2016. A possess prohibited drug offence could accordingly have only occurred while he was bail refused and in custody on remand. He received a sentence of imprisonment of one month commencing on 18 April and concluding on 17 May 2017.

49. Those matters are, of course, relevant to the risk of reoffending and the prospect of rehabilitation. Offenders who have committed offences who have problems with the use of prohibited drug are frequently at the risk of reoffending in the absence of having managed to cease using prohibited drugs.

50. His history while in custody would appear to indicate that he has an ongoing problem in relation to the substance methylamphetamine. I note that it has become a significant scourge on the community. It is now readily obtainable anywhere in New South Wales, whether city, town or country area. It has penetrated all social classes. It is well recognised that it is highly addictive and that it has a variety of adverse consequences for those who use it and those who are indirectly exposed to those who use it. The matters that regularly come before the Court indicate that users are frequently beset by the adverse effect of a drug-induced psychosis, that they commit offences in order to obtain the funds that further their addiction by way of robbing other citizens of money and/or property, frequently with associated violence, and that the journey to rehabilitation and the cessation of the use of such drugs is frequently associated with failure and backsliding, even where there has been some success.

51. I note in relation to this offender the evidence of the offender’s parents as to his past efforts. His father indicated that he believed that his son would be proactive in getting assistance with regard to anger management and drug and alcohol problems which, of course, his father would support. And his mother gave evidence that he has previously attended William Booth for a full-time residential program of four months, finishing the first course, but not doing the second course because it was indicated to him that he did not require it, and he simply returned to work in carpet laying, and also that, as a result of a court order, he has previously attended Adele House, Coffs Harbour. It is unclear when, but most likely in relation to the offences of larceny and two counts of assault occasioning actual bodily harm, and resist officer and assault officer, in respect of which Mr Watson-Munro previously wrote a report dated 14 July 2014. In that report, Mr Watson‑Munro says:

“On a more positive note he has now detoxified and is thinking more clearly. To this end, Mr Dowd expressed considerable remorse for what occurred. Of equal significance, he claimed that prior to the incident he had been in treatment at Coffs Harbour for about three weeks before being thrown out of the program for being stupid. He was then readmitted for three days prior to being caught with alcohol and once again expelled”.

52. It appears that the attendance at Adele House may have been as a result of a court order made in respect of offences that he had committed before committing the offences in relation to which Mr Watson‑Munro wrote his report.

53. His mother in her evidence referred to his attendance at Adele House as being, in her view, “an excuse to get out of gaol”. That appears to be an appropriate assessment of her son’s motivation. His mother, I note, works for Justice Health at Long Bay in relation to what I take to be administrative work in relation to medical appointments for prisoners. It is obvious that she has made her best endeavours over the years to try and make her son face his problems and take responsibility for addressing them. As to the prospect of his reoffending, in her assessment she said, not her precise words, but, “I’d like to say no, he won’t, but we will do everything for him. He has to grow up and take responsibility”.

54. As I have previously said, I accept that his family, in particular his parents, will continue to support him and, indeed, push him to obtain appropriate treatment.

55. I note the following comments have been made by Mr Watson‑Munro in respect of treatment. I have already referred to his earlier report and Adele House. In that same report, Mr Watson‑Munro states:

“Beyond a brief stint at Coffs Harbour, Mr Dowd has had no ongoing or effective treatment for his difficulties...I believe that he would benefit from cognitive behaviour therapy to focus on the development of relapse prevention strategies, social skills training, anger management and impulse control training.”

56. Having written his first report of 14 July 2014, he wrote a brief addendum report dated the same day in relation to, apparently, his mother’s concern that he may be suffering from an obsessive compulsive disorder. That had been something not raised by the offender in his consultation with Mr Watson‑Munro, and Mr Watson‑Munro allowed, in short, that it was a possibility, but that there was no formal diagnosis. As to treatment, Mr Watson‑Munro in the brief addendum report stated:

“Mr Dowd and I established a very solid rapport during my assessment of him and although it is rare for me to take on clients for treatment due to court commitments both here and elsewhere in Australia, he impresses as a genuine individual and I would be happy to see him as a patient for a minimum of six to twelve months, in addition to referring him to a psychiatrist for a further opinion concerning the possibility of OCD”.

57. I note there is no psychiatric report confirming the possibility of OCD, and as to any further treatment from Mr Watson-Munro, it appears at the highest, in relation to either OCD or cognitive behaviour therapy, that the offender may, from the evidence of the offender’s father, have had some further consultations with Mr Watson‑Munro, but if he did there is no reference to them in Mr Watson‑Munro’s report. It would, of course, have been well known to Mr Watson-Munro that if there was further treatment it would have been appropriate to refer to it in his latest report.

58. There was a referral letter that I have previously referred to from Dr James, being a general practitioner, to Chris Alexander, who I believe was either a psychologist or a psychiatrist. It may be that there were, as I understand it from the evidence before me, some consultations with that person, but there is no report from Chris Alexander.

59. I note that as background to the offending, it has been stressed by the offender’s parents, and relied on in submissions, that the family was having some difficulties at the time of this offending in that the offender’s grandmother, to whom he was close, had in the last six months had heart surgery; that his mother had had a diagnosis of breast cancer, I believe first diagnosed in 2015, resulting in several rounds of surgery in 2016, being April, May or June, together with six months of chemotherapy which finished in December 2016, and radiotherapy in March of 2017. On 14 December 2016, she was due to return to hospital for surgery in relation to a hysterectomy. Her evidence was that her son was fully aware of these problems, and, in particular, he had attended the night before she was due to go into surgery, but that he had been in and out and had declined to come to the hospital. She had not observed him at the time to be under the influence of drugs or alcohol, that is, on the preceding day. She also referred to the offender as having been in a relationship of a toxic nature with a female who had been about 12 weeks pregnant, but miscarried some two weeks before the offending conduct. The offender believed she may have been being unfaithful to him, she having a previous partner to whom she had children and whom she was seeing on and off.

60. All of these circumstances may indeed have been stressful for the offender, but that does not excuse his offending conduct on 14 December 2016, although it is relevant background. He was significantly offending, although not to the same extent as revealed by these charges, in the past.

61. The offender has two older siblings, a brother and a sister. His father had his own plumbing business and I have already referred to his mother’s occupation. He attended South Sydney High School, but left halfway through Year 9, commencing work as a greenkeeper for approximately a year before becoming a garbage collector for a further year. He then commenced as a carpet layer, being taught the trade by a friend, which he did for about two years. It was said that at the time of his arrest for the offences that Mr Watson‑Munro did his first report in respect of that he was intending to commence plumbing as a trade at about the time of his arrestMr Watson‑Munro, in his most recent report, referred to the offender as “… expressed significant remorse in relation to his behaviour in the context of knowing the victim” and also “… at examination he expressed appropriate remorse for his behaviour”. Mr Watson‑Munro does not say how it is that the offender expressed himself, which Mr Watson-Munro interpreted as expressing remorse. Mr Watson‑Munro’s acceptance that the offender was remorseful is also affected by his previous reports in relation to the earlier offending. Before Mr Watson‑Munro’s first report, he had spent time in custody, and Mr Watson‑Munro observed:

“He stated, however, that this has been his first exposure to prison which has had a salutary effect upon him”,

and as previously referred to:

“On a more positive note he has now detoxified and is thinking more clearly. To this end Mr Dowd expressed considerable remorse for what occurred”.

62. At p 5 of the first report of 14 July 2014, again:

“At examination he expressed remorse for his behaviour”.

63. Despite Mr Watson‑Munro’s repeated assertions of the expression of remorse, he does not state how it was expressed, and his acceptance that a previous period of custody had d a salutary effect on him has not been borne out by the offender’s recent commission of significantly more serious offences. While Mr Watson‑Munro may accept that the offender has expressed remorse, I am unable to assess the basis on which Mr Watson‑Munro found that remorse was expressed, even though one expects that psychologists might well understand the difference between the expression of remorse and other expressions which do not necessarily reflect remorse.

64. The difference, by way of an example, came from the evidence of Mr Paul Dowd. When asked if he had discussed the offender’s attitude to his offending, he said that his son was “remorseful”. When the Court asked how his son had expressed that Mr Dowd indicated “He just says, ‘I wish I never did it. Don’t know why I did’”. With respect to Mr Dowd, my view is that that is not an expression of remorse at all, but an acknowledgment of the serious situation in which the offender now finds himself.

65. I note that the background to the offences given by the offender to Mr Watson‑Munro includes the following:

“Mr Dowd reported that whilst in the community he had intermittent periods of being drug free until he relapsed in the lead up to the offending. He stated that he was experiencing amphetamine‑related psychosis involving both auditory and visual hallucinations and claims that he had been sleep deprived for a number of days. When questioned further he added, ‘It was bad...I’d had enough...my mother was sick...there were problems with my girl...I was paranoid’. He stated that since detoxifying he has had no further psychotic breaks”.

66. He is said to have completed a drug and alcohol course at Parklea Correctional Centre which occupied approximately five months. He informed Mr Watson‑Munro that he had been drug free for the entirety of his remand period, a claim that appears to be inconsistent with the material before the Court.

67. I note that according to Mr Watson-Munro’s report, the offender had an unhappy childhood and depression in his teenage years. When Mr Paul Dowd was asked about his son’s childhood, he referred to it as having been a very happy one.

68. As to the offender’s use of prohibited drugs, he is said to have a history of illicit drug use beginning from about the age of 14, including cannabis, benzodiazepines, opiates and methylamphetamine according to the Pre-Sentence Report, but also including, according to Mr Watson‑Munro, a heavy addiction from the age of 17 to cocaine, using up to 3 grams at a time, being binge use which caused him to miss work, and typically being sleep-deprived for up to eight days at a time, while experiencing hallucinations and delusions as well as drinking heavily. If the offender was significantly affected by the use of a prohibited drug and it was having an adverse effect on 14 December 2016 it is clearly an effect that he was well able to have anticipated on the basis of his past experience.

69. I cannot in the circumstances find that there is a low prospect of the offender re-offending. Indeed, the Sentencing Assessment Report refers to him as being a medium risk of reoffending. As to the prospect of rehabilitation, that must also be at least guarded in the circumstances of his past criminal history and the failure of such treatment as he has had in the past to assist him in terminating the use of prohibited substances.

70. His mother was entirely correct when she said that her son needs to grow up and take responsibility, although both she and her husband seem to feel that the period of two years that he has now spent in custody has brought him to what was referred to by Ms Levick in her submissions as “the light bulb switched on”...”turned the corner”...”it’s a crossroad at 28 years of age”. It is frequently submitted that offenders have finally had the light bulb moment or that they have reached the crossroads, but on the evidence before me, and particularly in the absence of evidence from the offender, I am unable to agree with those submissions.

71. The offender is well regarded by those who have provided references, and there is indication that he will be able to obtain employment as a carpet layer when released.

72. For the purpose of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. In sentencing an offender, the sentence must reflect the objective seriousness of the offence or offences as well as the need for general and specific deterrence, as well as meeting the fundamental purpose of punishment, the protection of society.

73. I am satisfied that the s 5 threshold has been passed and, having considered all possible alternatives, that there is no penalty other than imprisonment that is appropriate. In my view, both general deterrence and specific deterrence are important matters to take into account in relation to this offender and this offending.

74. I have provided the discount previously referred to, for the utility of the late plea, of 10%. I have taken into account all of the matters that I have referred to, and I have had regard to the maximum sentence provided in respect of each of the offences, and, in respect of the aggravated break, enter and commit serious indictable offences while armed, the relevant standard non-parole period has been a mark of the seriousness with which the legislators have regarded this offence, and provides a guidepost. Of course in respect of the standard non-parole period, this is a matter in relation to which the offender, in fact, pleaded guilty.

75. I intend to proceed by way of an aggregate sentence, in which case I am required to provide an indicative sentence in relation to each of the offences, including an indicative non-parole period for the offence of aggravated break and enter, as there is a relevant standard non-parole period.

76. When dealing with the offender in relation to the offence of aggravated break and enter and commit serious indictable offence, I have also taken into account in providing the indicative sentence the additional offence on the Form 1 of resist arrest.

77. The indicative sentence in relation to the offence contrary to s 97(1) of the Crimes Act, taking all of those matters into account, is a sentence of two‑and-a-half years’ imprisonment. In relation to the offence contrary to s 112(2) the indicative sentence is a non-parole period of two-and-a-half years with an additional term of one-and-a-half years, giving a total sentence of four years. In relation to each of those sentences, I have had regard to the sentencing statistics, although I note that they are, as a general proposition, not particularly useful in determining individual sentences. I have nonetheless perused them as available through JIRS rather than limiting myself to what was tendered on sentence.

Mr Dowd, will you please stand.

78. You are convicted in relation to each of the offences of robbery in company and aggravated break and enter and commit serious indictable offence, being armed.

79. The aggregate sentence is a non-parole period of three years. The balance of term is two years, giving a total sentence of five years with a three year non-parole period. I have reduced the non-parole period from the statutory relationship by a period of nine months in order to provide for a more significant period of parole, during which you can be supervised.

80. I note this is your first significant period of time in custody. As you have spent the period from 15 December 2016 to 17 April 2017 in custody only in relation to this matter, and the further period from 18 May 2017 to today, I have backdated the sentence from 18 May 2017 by the period of 124 days, which is the period you were in custody between 15 December 2016 and 17 April 2017.

81. So the sentence commences on 14 January 2017. You will be first eligible for parole on 13 January 2020. The balance of term is two years and the total term of five years will expire on 13 January 2022. Thank you. You can sit down.

82. As can be seen, the statutory relationship between the non-parole period and the balance of term is reduced because this is the offender’s first significant period of time in custody, and because, as I perceive it, there is a need for a more extended period on parole to assist him in rehabilitating into the community and overcoming his drug problems.

Is there any matter I omitted, Mr Crown?

FLIEGNER: No, thank you, your Honour.

HIS HONOUR: There was a matter on the s 166 certificate wasn’t there?

FLIEGNER: That matter is to be dismissed, your Honour, please.

83. HIS HONOUR: I will note that H63580642, Sequence 3, hinder arrest, referred to on the s 166 certificate, is withdrawn and dismissed.

Decision last updated: 21 February 2019