R v Drew Jason Brown

[2023] NSWDC 249

District Court

New South Wales

Medium Neutral Citation:

R v Drew Jason Brown [2023] NSWDC 249

Hearing dates:

21 October 2022

Date of orders:

03 March 2023

Decision date:

03 March 2023

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate term of imprisonment of 6 years with a non-parole period of 3 years.

Catchwords:

CRIME — sentence - accessory after the fact armed robbery – aggravated break and enter – possess unregistered firearm public place – accessory after the fact steal from person – common assault – totality – COVID 19

Legislation Cited:

Crimes Act1900 No 40
Crimes (Sentencing Procedure) Act 1999 No 92
Crimes (Domestic and Personal Violence) Act 2007 No 80

Cases Cited:

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Cahyadi v R [2007] NSWCCA 1

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Category:

Sentence

Parties:

Rex (Crown)
Drew Jason Brown (Offender)

Representation:

Counsel:
Ms Creary (Crown)
Mr Vulpeanu (Offender)

File Number(s):

2020/00142802
2020/00356752
2020/00356551
2020/00356734
2022/00051582

JUDGMENT

1. Drew Jason Brown, 23 years of age, appears before the Gosford District Court for sentence in relation to the following six offences:

1. Accessory after the fact, armed robbery with an offensive weapon an offence pursuant to s97(1) and s347, Crimes Act. The maximum prescribed penalty for that offence is 14 years imprisonment.

2. Aggravated break and enter and commit serious indictable offence (demand money with menace) an offence pursuant to s112(2), Crimes Act. The maximum prescribed penalty is 20 years imprisonment and there is a standard non-parole period of five years.

2. When dealing with the offender for that offence, the Court is taking into account two further matters on a Form 1 as follows:

1. Stalk and intimidate an offence pursuant to s13, Crimes (Domestic and Personal Violence) Act. The maximum prescribed penalty for that offence is two years imprisonment in the Local Court and five years imprisonment in the District Court.

2. Enter land with intent to commit an indictable offence (larceny) an offence pursuant to s114(1)(d), Crimes Act. The maximum prescribed penalty when dealt with on indictment is seven years. When dealt within the Local Court is two years.

3. Possess unregistered firearm in public place an offence pursuant to s93I(2), Crimes Act. The maximum prescribed offence for this offence is 14 years imprisonment.

4. Accessory after the fact, steal from person an offence pursuant to s94(b) and s350, Crimes Act. The maximum prescribed penalty for that offence is five years imprisonment.

5. Common assault an offence pursuant to s61, Crimes Act. The maximum prescribed penalty is two years imprisonment.

6. Common assault an offence pursuant to s61, Crimes Act. The maximum prescribed penalty is two years.

3. The offender also appears before the Court in relation to a severity appeal with respect to a sentence imposed in the Wyong Local Court on 11 October 2022. In respect of three offences, he was sentenced to an aggregate sentence of 18 months imprisonment with a non-parole period of 10 months. That sentence dated from 11 October 2022. The non-parole period expires on 10 August 2023. There were three offences that formed the subject of that aggregate sentence.

4. The offender was also dealt with for two Commonwealth offences of use carriage service to menace, harass or offend. In respect of sequence 3, he was sentenced to a fixed term of six months to date from 11 April 2023 and expire on 10 October 2023. In respect of sequence 5, he was sentenced to a fixed term of two months to date from 11 April 2023 and expire on 10 June 2023. The offender was bail refused on the appeal. Accordingly, he has been serving that sentence since 11 October 2022.

5. The offender has been in continuous custody since 31 January 2022. He also served a period of custody between 16 December 2020 and 24 November 2021. He has served a number of sentences whilst in custody bail refused on the current offences. I will say more later in my remarks in relation to the commencement date of the sentence to be imposed today.

CROWN MATERIAL

6. The Crown material on the sentence proceedings included the following:

Exhibit A, the Crown sentence summary which attached the notice of committal, the charge certificate documentation, the Form 1 document, the s166 certificates, two statements of Agreed Facts, the criminal history and the custodial history.

Exhibit B, CCTV of the Lake Haven offence.

Exhibit C, the Crown written submissions.

Exhibit D, a ballistics report.

Exhibit E, facts sheets in relation to H numbers ending 242 and 240.

The Agreed Facts

Accessory after the fact to armed robbery with an offensive weapon

7. At 10.05am on 17 September 2020, Kathleen Summers opened the Super Cellars bottle shop in Chain Valley Bay. Sometime before 11.25am, two males attended the home of the offender at Mannering Park. The offender gave one of the males a lift in his green Holden Commodore and the other male rode a motorbike in front of the Holden Commodore. About 2 kilometres along Ruttleys Road, Mannering Park, the male riding the motorbike cut through the bushland. The offender continued driving the other male. The motorbike met back up with them on the other side of the bush track.

8. The parties drove to a residential street in Chain Valley Bay. The male got out of the offender's vehicle and hopped onto the motorbike. The two males rode away together on the motorbike. The offender returned to his address in Mannering Park. The two males that had left the offender then went to the Super Cellars bottle shop.

9. About 11.25am, a male wearing a motorbike helmet lifted the front sliding door of the Super Cellars bottle shop. He approached the victim, Kathleen Summers, waving a green machete near her face. He said, "Take me to the till. Take me to the safe." The second male wearing a motorbike helmet also entered the shop. He said, "It's okay, we're not going to hurt you. Take us to the safe. Where is the safe?" This male put a blue bag on the counter and put packets of cigarettes into it.

10. While the two males were facing the cigarette counter, the victim hit the panic button. Both males became angry and one said, "Put that down". One of the males ripped the till out. As the males left one of them said, "Don't be touching nothing, don't be ringing no-one." The two males took cigarettes and about $1,500 in cash.

11. About 20 minutes later, the two males returned to the offender's address in Mannering Park. They told the offender that they had committed the robbery at the Super Cellars bottle shop. About 15 minutes later the offender then drove the two males in his Holden Commodore to Buff Point to assist them to leave the area. It is on the basis of that conduct that he was charged with an accessory after the fact to robbery, armed with an offensive weapon.

12. About three weeks later police posted a media release on their Facebook profile, which included a photograph of a green Holden Commodore collected from CCTV. The offender was notified of the Facebook post and he attended Service NSW at Toukley and changed the numberplates of his vehicle.

13. On 9 October 2020 a lawfully intercepted telephone call was recorded. The offender had made a telephone call to Menace Auto Styling and inquired about the price to get the bonnet and roof of the green Holden Commodore wrapped. That same day he made a telephone call to Altapac and inquired about tinting and graphics for the green Holden Commodore.

14. On 15 December 2020 police executed a search warrant at the offender's address. Stored in the garage was the motorbike used by the two males before and after the robbery.

The facts in relation to the aggravated break and enter, commit serious indictable offence and intimidation (Form 1)

15. Steven Jantz, Michelle Borg and their 19‑month‑old grandchild live at 4A James Close, Kariong. This is a single‑storey brick house. The lounge room is at the front of the property. In the front lounge room window is an air‑conditioning vent connected to a portable air-conditioning unit. The window is closed against the vent and there is a flyscreen secured to the outside of the window.

16. On 9 December 2020 Mr Jantz, Ms Borg and their grandchild were at home asleep in separate areas of the house. Sometime after 11pm, the offender and another male approached the lounge room window of the property. Mr Jantz was asleep in the lounge room and Ms Borg was asleep in the bedroom. The offenders bent the metal frame and forcefully removed the flyscreen.

17. Mr Jantz woke up to the sound of the next door neighbour's dog barking. He heard someone at the lounge room window pulling off the flyscreen. He pulled open the curtains and saw the two offenders wearing black balaclavas and black hooded jumpers. One of the males was holding a 50‑centimetre iron bar. The man holding the bar yelled out, "Open the fucking door". Mr Jantz called out for Ms Borg to call the police. The offender kicked the air conditioning vent into the house. Ms Borg came to the window. The offender started to climb through the window so that his left side, including his arm, leg and upper torso and head were inside the property. Ms Borg yelled, "What the fuck are you doing?"

18. While half his body was inside the house, the offender pointed a metal pole at Ms Borg. He swung the pole knocking over Christmas ornaments and large floor speakers into the air conditioning unit. As he was doing this, he demanded money from Ms Borg. Ms Borg told the offender that there was no money. In response, the offender said he would smash a car in the driveway if she did not hand over money. Ms Borg called out for her pet dog and the two offenders left.

19. At 1.02am and 2.04pm on 10 December 2020 telephone calls were recorded between the offender and an associate. The offender described the offence committed and reported that he had said to Ms Borg, "Where the fuck's the money then cunt? Give me a stack or I'm going to smash your Ford Ranger up". The offender's fingerprints were identified on the interior lounge room window frame at the point of entry into the property.

The facts in relation to the offence of enter land with intent to commit indictable offence (larceny) (Form 1)

20. John and Jodie Howard live at 40 Ruttleys Road, Wyee. The property is a 6.5 acre rural property with a house. The property has detached sheds and large storage containers used by the Howards to run their business, Howards Recycling. The house is covered by CCTV cameras. Sometime before 4am on 12 December 2020 the offender and two other males entered the rural property.

21. About 4am, the three males approached the back entrance and pool area of the house. They searched the area near a locked door. They walked around the side of the house. The three males had hoods on and their faces were concealed. They were wearing long sleeves and long pants. The males were armed with a firearm, a baseball bat, and another pole.

22. About 4am, the offender walked near the front door of the house. He was holding a shortened firearm and wearing a hood with a face covering and black gloves. A second person was holding a baseball bat and wearing pants which had one light leg and one dark camouflage print leg with writing on the side. The third person who was wearing a hat with his face covered was no longer holding anything.

23. About 4.04am the male holding the baseball bat entered the passenger side of a black Holden parked in the driveway. The car door was closed but not locked. The male sat in the passenger seat and searched through the car, including the glovebox. The offender searched the driver's side and the centre console of the car using the light on his phone. The offender then moved to the back driver's side passenger seat and searched the car.

24. About 4.08 am the three males were inside one of the garages where the trucks are kept. At 4.17am John Howard and Jodie Howard were in bed asleep when their dog started barking. Jodie Howard woke up and walked to the kitchen area. The dog was barking frantically. At that time the offender holding the baseball bat knocked on the front door. One minute later the same male came to the back and knocked on the back door.

25. At 4.20am the male wearing pants with camouflage legs approached the front door. He was holding the shortened firearm. Jodie Howard looked at the CCTV screen in the kitchen and could see the man standing at the front door. Initially she thought it was her daughter's boyfriend, however she noticed the male had something covering her face. She looked through the blinds and saw two to three figures standing outside. She ran up the hallway and into the bedroom saying, "Someone just ran around the side of the house". John Howard got up and ran towards the front door. Jodie Howard turned on the front outside light and about 4.22am the three men ran away.

26. On 15 December 2020 police executed a search warrant at the offender's home in Yarramalong. Stored in a green and white bag on the bed was a shortened firearm used in this offence.

The facts in relation to the offences that occurred on 31 January 2022, being offences of possession of unregistered firearm in a public place, accessory after the fact to steal from a person and two offences of common assault

27. The co-offender in relation to some of these offences is Jesse Childs. Jesse Childs and the offender are friends and refer to each other as cousins. The person referred to in the facts as Lucy Howe was the offender's girlfriend at the time. She owns a red Mazda 3 motor vehicle.

28. The victims are Ross Smith, aged 39 years and Brendan Gallo, aged 27 years. Gallo and Smith were flatmates. The victims are not known to the offender or Mr Childs. Mr Smith owns a green Toyota RAV4 and one of the back seats has been removed so the car can only carry three people.

29. Sometime prior to February 2022, Gallo's friend, Dwayne Dargan, told Mr Gallo that he had recently had some trouble with the offender. Mr Dargan asked Gallo to find out some information about the offender and Mr Childs. To facilitate this, Dargan told Mr Gallo that the offender would contact him on Facebook Messenger. Mr Gallo understood that the offender had been told that Mr Gallo could supply him with drugs.

30. On 31 January 2022, Gallo received a Facebook message from the offender. In the message the offender asked Mr Gallo if Mr Gallo could supply him cocaine. Mr Gallo did not have any cocaine to supply but indicated he could supply cocaine. Mr Gallo agreed to meet with the offender for the purpose of supply at 6.30pm, in the underground car park near the car wash at the Lake Haven Shopping Centre.

31. About 6.20pm, the red Mazda owned by Ms Howe was driven to the Lake Haven Shopping Centre. Ms Howe was the driver, and the offender and Mr Childs were passengers in the vehicle. She parked in the outdoor car park. At 6.26pm, the offender and Mr Childs got out of the car and walked towards the shopping centre. Mr Childs was drinking from a glass Vodka Cruiser bottle.

32. Once on the footpath he paused and finished the drink. He discarded the empty bottle on a retaining wall. At 6.28pm, the Mazda left the outdoor car park and drove in the direction of the underground car park. The offender and Mr Childs entered the shopping centre and walked towards Woolworths and Aldi. Before 6.28pm, Mr Gallo asked Mr Smith to go for a drive with him. He did not tell Mr Smith the true reason for the drive.

33. They drove together in a green RAV4 to the Lake Haven Shopping Centre arriving at 6.28pm. Mr Gallo drove and Mr Smith sat in the front passenger seat. At 6.29pm, they entered the underground car park within a few seconds of the red Mazda. At 6.30pm, the offender and Mr Childs walked down the travelators near Woolworths and Aldi towards the car park.

34. At 6.31pm, the offender walked from Woolworths exit towards Mr Gallo. The offender called Mr Gallo and said, "Where are you?" Mr Gallo said, "I'm driving a green RAV4. The offender said, "Oh yeah, I see ya". Mr Gallo saw the offender and a moment later Mr Gallo saw Mr Childs walking behind the offender. The offender and Mr Childs approached a rear passenger door of the RAV4.

35. Mr Childs got into the car and the offender stood by the passenger door. Mr Gallo turned his body around and shook hands with Mr Childs. They were chatting and the offender mentioned that Mr Childs was his cousin. They talked for about five minutes.

36. Mr Gallo got out of the car and walked around to where the offender was standing. He said, "Come over here quickly and we will sort this out." Mr Gallo walked back to the driver's side. He did not want Mr Smith to hear the conversation. Mr Smith remained in the front passenger seat and Mr Childs the rear passenger seat. The offender said, "Have you got the stuff?" Mr Gallo said, "No, I don't bro. You gotta sell out all the people you have robbed."

37. At 6.37pm, because of the assertion by Mr Gallo, the meeting turned volatile. Mr Childs grabbed Mr Smith's empty brown wallet from the centre console. The offender was initially unaware of the theft. The offender then pulled a prohibited pistol from the waistband at the back of his pants. He ran around to the passenger side of the car and pointed it at Mr Smith. Mr Smith got out of his car with his hands raised and said, "What's going on?"

The facts in relation to the offence of accessory after the fact to steal from a person

38. Mr Childs got out of the car and said, "I'm taking this" being a reference to the wallet. The offender pointed the firearm at Mr Smith to aid Mr Childs' escape from the car park. Mr Childs took a large silver knife out from the back of his pants. He held it in his right hand and motioned with it towards Smith.

The facts in relation to the offences of common assault

39. The offender continued to hold onto the firearm in his right hand. He raised it in the direction of Mr Gallo. Mr Gallo was scared and thought he was going to be shot. Mr Smith and Mr Gallo backed away. The four males were on the road yelling at each other. Mr Childs yelled, "Just get in the fucking car". Mr Smith said, "No, you go that way and I'll go this way". Mr Childs was armed with the knife.

40. As they were arguing, Mr Childs dropped the knife. He bent over to pick it up and then Mr Childs and the offender ran away through the car park. They briefly separated. As they were running Ms Howe followed closely behind in the red Mazda. Mr Gallo and Mr Smith got back into the RAV4. Mr Gallo reversed out of the spot in front of Ms Howe. Mr Gallo drove after Mr Childs and the offender.

41. As the offender and Mr Childs ran from the underground car park to the outdoor car park, a witness was driving through the car park. The witness' car was fitted with front and rear dash cameras. She drove in front of the offender and captured him running down a ramp near JB Hi-Fi. He was holding onto the pocket of the front of his jumper. As he was running, he briefly removed a pistol from the pocket of his jumper. The witness turned right and then captured Mr Childs on the rear dash camera running behind the offender in the same direction.

42. The camera also captured the green Toyota RAV4 being driven at speed through the car park and abruptly stop. The witness realised that there was a problem and turned her car around to utilise the front dash cam. As the RAV4 drove through the car park, the offender ran into the shopping centre. Mr Childs followed closely behind. As he reached the footpath, he tripped and fell on the gutter. Mr Smith jumped from the passenger seat of the RAV4 and immediately approached Mr Childs. He said, "What did you fucking steal?" Mr Smith punched Mr Childs in the face.

43. Mr Gallo got out of the RAV4 and went to assist Mr Smith. Mr Childs got up from the ground, he was still holding the knife, and he swung and slashed it towards Mr Smith. Mr Childs fell back to the ground and Mr Smith punched and stomped on him three to four times. Mr Smith tried to grab Mr Childs' hand and control the knife. He grabbed the knife blade. Mr Childs pulled backwards causing a wound in the webbing between Mr Smith's thumb and index finger. Mr Smith said to Mr Gallo "Help me control him". Mr Smith placed his foot on Mr Childs' neck.

The facts in relation to the offence of possession of unregistered unauthorised pistol in a public place

44. The offender returned from inside the shopping centre brandishing a pistol in his hand. The offender dropped the pistol. He then picked up the pistol and pointed it at Mr Gallo. Mr Gallo said, "Pull the trigger". Mr Childs got to his feet and swung the knife at Mr Smith stabbing him to the left shoulder. The offender turned around and ran into the shops still holding the pistol. Mr Childs followed him. Mr Childs ran into the shopping centre with a knife in his right hand.

45. There is CCTV footage of the offender entering the Lake Haven Shopping Centre. I have watched that footage during the sentence proceedings.

46. Mr Gallo checked on Mr Smith. At 6.39pm, Mr Gallo moved the RAV4 into the car park. At 6.40 Mr Gallo got into the RAV4 and drove home to report to his partner what had happened. At 6.41pm, the offender and Mr Childs walked out of the shopping centre near Liquorland. They got back into the red Mazda. The red Mazda then drove out of the car park.

The investigation

47. Police attended and recorded a version on camera of Mr Smith and Mr Gallo. Mr Gallo did not disclose the true reason for attending the shopping centre. The crime scene examination was completed. Police subsequently attended the home of Ms Howe. The offender was found in her bedroom. He was arrested and taken to Wyong Police Station. He provided a sample of his DNA.

48. At 12.55am on 1 February 2022, a search warrant was executed at the home of Ms Howe. Several items were seized, including the Mazda belonging to Ms Howe.

49. On 3 February 2022, investigators searched the car. During the search the firearm was located underneath the front passenger's seat. An expert opinion confirmed that the pistol was an air gun as defined in the Firearms Act and also a pistol. In the back of the car police found Vodka Cruiser bottles, cardboard packaging, a plastic bag and receipts.

50. On 15 March 2022, Mr Childs was arrested.

Expert evidence

51. At 8.30pm on 31 January 2022, Mr Smith was treated by Dr Phillip Webster at Gosford Hospital. He concluded that Mr Smith had a wound to the left deltoid area, shoulder and upper arm and a laceration to the skin in the right hand web space between the thumb and index finger. Subsequent DNA analysis identified the DNA of both Mr Childs and Mr Brown.

52. Those facts clearly disclose a high order of objective seriousness. The 2020 offending included the break and enter at Kariong where the victims were awake during the offending. The events of 2022, at the Lake Haven Shopping Centre where a pistol was brandished in a public place must necessarily attract a stern sentence, not only to deter this offender, but also like-minded individuals within the community.

Assessment of the objective seriousness

53. In assessing the objective seriousness of the offence of accessory after the fact of armed robbery, I have taken into account the following factors:

1. That one of the offenders was armed with a machete and waved it near the victim's face during the robbery, that the victim was a shopkeeper, that $1,500 was taken, and that the premises were a commercial business.

2. That the offender assisted the co-offenders by:

(i) allowing them refuge in his home;

(ii) driving them to Buff Point;

(iii) storing the motorbikes that were used in the offence at his home; and

(iv) taking steps to disguise his car so the co-offenders and himself would not be identified.

54. Having regard to those factors, I assess the objective seriousness of this offence as just below the mid-range.

55. In relation to the offence of aggravated break and enter and commit serious indictable offence (demand money with menace) in assessing the objective seriousness I have taken into account the following factors:

1. That the offender was in company with one other person.

2. The circumstance of aggravation was being armed with an offensive weapon. The offender was armed with a 50‑centimetre iron bar which he    pointed at the victim Ms Borg and then swung the item knocking over various items.

3. The serious indictable offence committed was demand money with menaces which has a maximum prescribed penalty when committed in    company of 14 years imprisonment.

56. Having regard to those factors, I assess the objective seriousness of this offence in the middle of the range.

57. In assessing the objective seriousness of the offence of possession of the unregistered firearm in a public place (aggravated) I have taken into account the following factors:

1. The offender was in possession of the pistol at a shopping centre.

2. He was brandishing a pistol in his hand as he ran into the shops as shown on the CCTV.

3. The offending occurs between 6.37pm, and 6.41pm.

4. The pistol was a gas operated gel ball air pistol which was in working order.

58. Having regard to those factors, I assess the objective seriousness of this offender as just below the middle of the range.

59. In assessing the objective seriousness of the offence of accessory after the fact to steal from a person, I have taken into account the following factors:

1. The property stolen was an empty wallet.

2. That this offender pointed the pistol at Mr Smith to allow Mr Childs to escape from the car park.

60. Having regard to those factors, I assess the objective seriousness as below the middle of the range.

61. In relation to each offence of common assault concerning Mr Gallo and Mr Smith, in assessing the objective seriousness of each offence, I have taken into account the following factors:

1. The assault relates to the pointing of the pistol in the direction of each victim which created an apprehension of violence.

2. Each victim would have been unaware of the type of pistol being used by the offender.

62. Having regard to those factors, I assess the objective seriousness of each of these offences as just below the middle of the range.

Aggravating factors

63. In relation to all offences, the offender was on conditional liberty at the time of the commission of the offences, in circumstances where he was subject to two intensive correction orders and one community correction order.

64. In relation to the offence of aggravated break and enter and commit serious indictable offence, a further aggravating factor is established, namely that the offence was committed in the home of the victim.

No victim impact statements

65. The Court has not received any victim impact statements in respect of the offending. I have no doubt that the offending at Chain Valley Bay in relation to the Super Cellars liquor store, the offending at Kariong in relation to the aggravated break and enter of the residential premises, and the events at Lake Haven Shopping Centre in January 2022, would have been wholly terrifying for those victims that were present.

66. Most particularly, in relation to the two victims involved with the offending where the offender was brandishing the pistol, I expect they would have experienced significant trauma in circumstances where they may well have expected that the firearm was capable of discharging bullets.

67. One of the purposes of sentencing is to recognise the harm done to the victims: see s3A(g), Crimes (Sentencing Procedure) Act.

The offender's subjective circumstances

68. As I indicated, the offender is 23 years old.

69. He has a criminal history commencing in 2018 when he was 19 years old. He was dealt with for offences of destroy or damage property and stalk and intimidate, and received community corrections orders. He was also dealt with for possessing a prohibited weapon. That was dealt with pursuant to s 10.

70. In 2019, he was dealt with for an offence of contravening an apprehended violence order. He received a conditional release order that was called up. It became a community corrections order. He was also dealt with for two offences of stalk and intimidate. He received community corrections orders for those matter.

71. In relation to a further offence of use carriage service to menace, harass or offend, he received a Commonwealth recognisance. He was called up in respect of those matters and received an intensive correction order for eight months.

72. In 2020 he was dealt with for the following offences: Stalk and intimidate, he received a nine month intensive correction order, contravening an apprehended violence order, a six month intensive correction order. A further offence of contravening an apprehended violence order, community correction order which was called up and dealt with pursuant to s 10A, contravention of an apprehended violence order, an aggregate term of an intensive correction order of eight months.

73. In 2021 for the further offence of contravene apprehended violence order, after an appeal, he was sentenced to a nine month term of imprisonment with a non-parole period of six months, and in 2022, for a further offence of contravening an apprehended violence order, he received a six‑month term of imprisonment.

74. In that same year, he received an aggregate sentence of 18 months with a non-parole period of ten months for two offences of stalk and intimidate and distributing an intimate image. That aggregate sentence is the subject of the severity appeal. He was also sentenced for two offences of use carriage service to menace, harass or offend. He received fixed terms of six months and two months. They are Commonwealth offences which are also subject to the severity appeal.

75. Having regard to the offender's criminal history, I am satisfied that it disentitles him to the leniency on sentence that would otherwise be available to a person of good character.

76. The offender did not give evidence during the sentence proceedings.

77. The following material was tendered on his behalf:

Exhibit 1, report of Ms Grujoska dated 21 September 2022.

Exhibit 2, the Connect letter of attendance.

Exhibit 3, letter from Zach Brown, his brother dated 30 December 2022.

Exhibit 4, letter of Sarah Wilde, his aunt dated 3 January 2023.

Exhibit 5, letter of Melissa Worrell, a family friend dated 1 January 2023.

Exhibit 6, letter of Lisa Brown, his mother, dated 6 January 2023.

Exhibit 7, joint letter from his mother, father, brother and sister Jasmine Brown dated 22 January 2023.

Exhibit 8, letter of the offender undated.

Exhibit 9, defence written submissions.

Exhibit 10, the preliminary advice in relation to New South Wales ballistics.

78. The offender's background is outlined in the report of Ms Grujoska. The offender saw Ms Grujoska for two and a half hours on 16 June 2022. He was 22 years of age at that time. He said he was born in Wyong and is the middle child of three children to his parents. He said he had a stable and pretty relaxed upbringing. He played sports. He reported his mother was employed throughout his childhood. He described her a supportive, involved, and loving. He said they maintained a good relationship and are in regular contact.

79. He said his father coached him throughout a lot of his sport and was present and supportive. He said he had a close relationship with his father when he was younger, however that relationship changed after his father moved away to the mines for work. He had a close relationship with his older brother, which he described as his support person.

80. He said his brother is stable, he operates his own business, he continues to play sport. He said his brother had offered him a full-time job in his business if he can remain abstinent from drugs. His sister is a school teacher who, whilst disappointed in his actions, remains supportive of him. He said he also had a close relationship with his grandparents growing up. They separated when he was ten years old. He said the separation deeply affected him and his relationship with his grandmother became disconnected after she moved away.

81. He said his grandmother died in 2015. He said he felt devastated after her passing as he had planned to visit her. However, she passed away before the visit occurred. He said he regrets not seeing her sooner. He said he experienced grief and loss regarding his grandmother, and stated "If she was around things may have been different". He described her as a caring and compassionate person to whom he could speak about anything.

82. The offender reported that he had attended a school sporting day held at Frank Baxter Youth Justice Centre where he was sexually assaulted by a male officer when he went to use the bathroom. He said after the assault he ceased participating in sports and used cannabis daily. He said he felt set up by his sports teacher and did not disclose the assault until one year ago.

83. He became disruptive at school after the assault and was transferred to a behavioural school. He said he began to lie to his family and detach himself from others. He said before the assault he was a good child and had never gotten into trouble. He said he felt hurt as his parents would watch his brother play sport which affected him because he could no longer engage in activity following the assault.

84. In relation to his education, he said he attended Mannering Park Public School from kindergarten to Year 6. He said he had many friends, he played sports, he did well academically. He was one of the best in his sporting team and was a mentor to other players. He was selected to attend Wadalba Community School which was known for its sporting programs and as I have already indicated he said his schooling was going well until the sexual assault occurred at the Frank Baxter Youth Justice Centre.

85. He said he left school after the assault and attended Lake Munmorah High School until year 10. He was expelled for poor behaviour and frequently skipping class.

86. He commenced a carpentry apprenticeship at his father's friend's carpentry business for two years. He commenced working at his father's concreting business doing roofing. However, this employment did not last due to his dependence on drugs.

87. He reported an unremarkable medical history.

88. In relation to his psychiatric history, he reported no previous diagnosis of a mental health condition or treatment. He said he continues to struggle with the effects of trauma following the sexual assault, and he reported a number of symptoms, including frequent rumination, such as "If those things did not happen, where would I be? I may have had a family or been a sports player", constant feelings of regret, mood fluctuations, mainly depression, grief and loss over his past, disturbed sleep, anxiety, dreams about the sexual assault, poor concentration, restlessness, avoidance of talking about the assault.

89. He said he experiences these symptoms more frequently and intensely since being abstinent from drugs. He is extremely wary of prison officers due to his sexual assault and reported they are a constant reminder of his trauma.

Drug use history

90. The offender reported he commenced using cannabis at 14 years of age. This use increased after the death of his grandmother as a means of coping. He also started using cannabis daily after being sexually assaulted. He began using drugs heavily because he could not cope with his traumas. He commenced using ecstasy and MDMA recreationally at 17 years of age, as well as cocaine daily. He said he commenced using ice and heroin after he was released from custody the first time, which he would use at any opportunity. This drug affected his employment.

91. He said he was bailed to a drug rehabilitation facility in 2021, however, he left as there were drugs on the premises. He attempted to find another rehabilitation facility but was unsuccessful. He reported he has been abstinent from drugs since 31 January 2022 and is attempting to obtain approval to receive Buprenorphine injections whilst in custody. He has been accepted into a 12‑month drug rehabilitation facility called The Restoration Centre in North Richmond.

Circumstances at the time of the offending

92. The offender reported he lived with his parents on the Central Coast up until 2018 when he was incarcerated for the first time. His parents moved away and he continued to live in the family home with his siblings when he got out of custody.

93. After being released from custody he started spending time with his co-offender which led him to relapsing and engaging in the offending. He was relying heavily on his social network to access drugs during that period. He was not sleeping a lot and had no contact with his family. He used a combination of cocaine, ice, heroin at around the time of the offending.

94. He reported he was previously in a relationship for seven years which began in 2015. He was separated from his ex-partner for approximately four months before the offending. He described the relationship as toxic as his then partner tried to run him over with her car. He reported they argued frequently and used drugs together, which led to him ceasing work and engaging in heavy drug use. She became pregnant and had a miscarriage around three to four months. He said the miscarriage exacerbated his psychological issues. He said he is still in love with her, and that she is now also abstinent from drug use and doing well. He continued to use drugs after she became abstinent and would hide this from her which led to their relationship ending in 2020.

Attitude towards the offending

95. He expressed remorse and displayed insight into his offending stating, "I don’t know what I was thinking. Imagine if that was my mother, poor lady, I'm sorry". I expect that is a reference to the liquor store robbery, or possibly the aggravated break enter and steal at Kariong.

96. The offender expressed a desire to attend drug rehabilitation, to live with his brother, to obtain employment and start engaging in sports again, and to seek the support of a psychologist for his mental health. He does not want to relapse and is hoping to obtain approval for the Buprenorphine injections for additional support with his abstinence. He expressed a desire to reconnect with his ex-partner in the future, however plans to focus on healing himself before reconciling their relationship. He has decided to cease his friendship with his co-offender.

97. Ms Grujoska is of the opinion that the sexual assault experienced by the offender led to the development of post-traumatic stress disorder. She is of the opinion that if the offender's post-traumatic stress disorder is left untreated he will continue to struggle with his addiction, which could potentially lead to relapse into antisocial behaviours. In the opinion of Ms Grujoska:

"It appears his drug use developed as a result of poor emotional regulation skills, difficulty coping with grief and loss as well as trauma from sexual assault, all of which occurred before he was 15 years of age and contributed to current symptoms such as nightmares and avoidant behaviours."

Ms Grujoska continued:

"At the time of the offence he experienced extreme dependence on several drugs in an effort to ameliorate his mental health, which contributed to his involvement in the offence to support his addiction."

98. She recommended community-based support services which she considered would be more beneficial for the offender as a means of intensive intervention. She is of the opinion that remaining in custody is particularly onerous for the offender due to the sexual assault he experienced being allegedly perpetrated by an officer which could exacerbate his psychological condition, post-traumatic stress disorder, and make him vulnerable to relapse and increase his hypervigilance.

99. She stated that the offender's expression of regret and eagerness to accept support appeared to be genuine. She reported his abstinence from drug use, offer of stable employment and good supportive family relations are all protective factors against re-offending and suggested he would benefit from treatment. She was of the opinion he will continue to improve should he be given the opportunity to access services targeting symptoms arising from trauma, low mood, grief and addiction problems.

98. In relation to treatment in custody, she recommended that the offender engage in the EQUIPS Foundation Program and EQUIPS Addiction Program, and if he is in custody for an extended period, the Intensive Drug and Alcohol Treatment Program, which is a six to eight months high intensity group program which teaches participants to manage cravings, urges to drug use, and equips them with appropriate strategies to cope.

99. In relation to treatment in the community, she strongly recommended the offender participate in individual counselling through The Restoration Centre to address his drug dependence and develop a supportive relapse prevention plan. Further, that he engage in weekly face to face psychological sessions tailored to grief and trauma with a psychologist. She noted that the offender can access these sessions through his GP under a mental health care plan. She also indicated that the offender may be eligible for the victims counselling service, given his experience of sexual assault.

Other material tendered on behalf of the offender

102. Other material tendered on behalf of the offender included a letter prepared by the offender to the Court. He outlined that he has been assaulted whilst at Kempsey Correctional Centre and required hospitalisation for broken bones. He was also attacked with a knife at the South Coast Correctional Centre. Whilst in custody he has also contracted COVID-19. He has been in maximum security whilst in custody and he has spent 130 days in COVID-19 lockdown.

103. The offender's father, mother, brother and sister also provided a joint letter to the Court. They outline that the offender has changed since he has been in custody. He speaks to the family differently. He wants to live on the family farm at Merriwa and start a new life. His family is supportive of him. He is also supported by his aunt, Sarah Wilde, and family friend Melissa Worrell. His aunt and her husband operate a concreting business and are willing to employ the offender.

Submissions of the parties

104. The Crown relied upon written submissions supplemented by further oral submissions.

105. Mr Vulpeanu of Counsel on behalf of the offender also relied upon written submissions supplemented by oral submissions. I have taken those submissions into account in determining the appropriate sentence.

The relevance of the offender's mental health

106. Having regard to the report of Ms Grujoska, I am satisfied that the offender has a diagnosis of post-traumatic stress disorder. It was not submitted on behalf of the offender that his mental health issues were causally connected to the offending. Rather, it was submitted that the traumatic event of being sexually assaulted leading to drug addiction is relevant to the general sentencing exercise.

107. I am satisfied that whilst not causally connected to the offending, the offender's post-traumatic stress disorder remains relevant to the overall sentencing exercise.

108. I am further satisfied that the offender's time in custody will be more onerous because of his post-traumatic stress disorder: see generally, DPP (Cth) v De La Rosa [2010] NSWCCA 194.

Remorse

109. The offender told Ms Grujoska that he is remorseful for his offending. In circumstances where that evidence was not given on oath, I give it limited weight.

The offender's prospects of rehabilitation

110. Any view of the offender's prospects of rehabilitation must necessarily be guarded given his longstanding drug history and the extent of his offending. However, there are some positive signs. He has been abstinent from drugs since 31 January 2022. He is motivated towards his own rehabilitation. He has been accepted into a rehabilitation facility. He has a very loving and supportive family. He has stable accommodation available to him at his parents' property in Merriwa, and he also has an offer of employment.

111. The Court is hopeful that when the offender is released from custody, he is able to stay away from drugs. I expect it will be no easy journey, but hopefully with the love, guidance, and support of his family he can look forward to a much more stable future. At this stage, I am unable to find that he is unlikely to re-offend.

Form 1 offences

112. In sentencing the offender, I have taken into account the Form 1 matters in accordance with the principles enunciated in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

Totality

113. In circumstances where I am dealing with the offender for six offences, I am required to determine each sentence and thereafter consider the principle of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent. But if not, there should be some partial accumulation between the sentences: see Cahyadi v R [2007] NSWCCA 1.

114. Having considered the criminality, I am satisfied that some partial accumulation between the offences is necessary given the distinct criminality. I have also considered the question of totality in relation to those sentences that the offender has served whilst in custody. I will say more later in my remarks about the appropriate commencement date.

The impact of COVID-19

115. I am satisfied that the COVID-19 pandemic has had a very significant impact upon the offender's conditions in custody. Not only has he served 133 days in COVID-19 lockdown, but the Court is well aware of the many restrictions that were placed upon New South Wales correctional facilities during the time of the pandemic. These include no personal visits and the reduction in courses and services available to prisoners.

116. I am satisfied that because of COVID-19 and the measures adopted by New South Wales correctional facilities to combat the pandemic, that custodial conditions have been extremely onerous. I do propose to moderate the otherwise appropriate submissions in those circumstances.

Special circumstances

117. It was submitted on behalf of the offender that the Court would make a finding of special circumstances and vary the statutory ratio between the non‑parole period and the parole period.

118. I am satisfied that special circumstances are established, given that there is no doubt that the offender will need extensive supervision upon release to parole to address not only his drug use issues but also to receive treatment for his mental health issues. That variation will be pursuant to s44(2B), Crimes (Sentencing Procedure) Act.

Severity appeal

119. Before I continue, I propose to deal with the severity appeal. As I indicated, the offender also appeared before the Court in relation to a severity appeal with respect to a sentence that had been imposed on 10 October 2022, at the Wyong Local Court in respect of three offences.

120. The offender had received a total term of 18 months' imprisonment with a non-parole period of ten months. That sentence dated from 11 October 2022. The non-parole period is due to expire on 10 August 2023.

121. The three offences in respect of which that aggregate sentence was imposed are as follows:

1. Stalk and intimidate relating to Lucy Howe. The indicative term nominated was five months. The maximum prescribed penalty for that offence when dealt with on indictment is five years, when dealt with summarily is two years.

2. Intentionally distribute intimate image without consent (DV related). The indicative term nominated was 12 months. The maximum prescribed penalty when that offence is dealt with on indictment is three years. When dealt with summarily, it is two years.

3. Stalk and intimidate intending to cause fear of physical or mental harm, the victim again being Lucy Howe. The indicative term nominated was four months.

122. The offender was also dealt with for two Commonwealth offences of use carriage service to menace, harass or offend. In relation to sequence 3, he received a fixed term of six months to date from 11 April 2023 and expire on 10 October 2023. In relation to sequence 5, he received a fixed term of two months to date from the same date and expire on 10 June 2023.

123. The facts in relation to that offending are as follows: The victim in the matter is Lucy Howe. There is a co‑offender in the matter, Sheree Fraser. The victim and the offender had been in a relationship for seven years until approximately mid-April 2022, when the victim ended their relationship. There was an enforceable apprehended domestic violence order which had expired in March 2022. Since the expiry of the apprehended domestic violence order, the victim had received excessive communications and harassment from the offender.

The offence of stalk and intimidate with intent to cause fear of physical or mental harm

124. On 27 April 2022, at 3.42pm, the offender called the victim through the South Coast Correction Centre phones. Approximately seven minutes and 30 seconds into the phone call the offender stated:

125. "Any person you will ever be with I will chop their head off. I'll stab you in the face so you have big scars on your face and no-one will ever want to be with you. I promise you I would."

126. The victim told the offender, "I'll get another AVO on you". The offender replied, "All right, no worries. Has that ever stopped me?" The victim replied, "You're a sick freak, don't ever call me again." This caused the victim to be scared that the offender would cause her serious injury.

127. Since ending the relationship, the victim has received numerous calls from numbers she identified as gaol numbers and unknown callers. The victim tried to avoid answering calls she believed were from the offender. On multiple occasions the offender has called the co-offender where the co-offender has a three-way call with the victim.

The offence of stalk intimidate with intent to cause fear of physical or mental harm

128. At 3.52pm on 29 April 2022, the offender called the co-offender. During the conversation the offender stated:

129. "If I can't have her Sheree I'll stab her, I'll chop her hair off, I'll break her legs, so she's a fucking cripple, mate trust me. I told her I'd stab her in the face and she's like, 'You're lucky I don't get an AVO on you dog.'"

130. On 6 May 2022, the victim received a message from the co-offender's mobile phone. The message said:

131. "Hey, I just spoke to Drew. You are allowed to book online through Just Connect. They have banned you from all visits. They don't have to call up. Answer the phone before I send someone to come around and give you the phone personally. If you don't answer the phone in next hour, I'm going to ring your work phone and get people to come and give you the phone. You're clearly out getting rooted by Jack Shelton or someone, love Drew. Answer the fucking phone mate, I'm starting to get pissed off."

132. On 14 May 2022, the offender has given the co-offender access to his social media account, Snapchat. The offender has done this by providing the co-offender with his user name and password. On this account the offender had multiple sexual intimate images of the victim stored. During a phone call with the co-offender, the offender states to the co-offender, "Watch what I'll do. I'll post photos of her dead set cunt on my Snapchat story. There are so many photos in my fucking saved photos."

The offence of intentionally distribute intimate image without consent

133. On 14 May 2022, the co-offender accessed the offender's Snapchat and saved an intimate sexual image of the victim at the request of the offender. The co‑offender has accessed her ex-partner Joshua Ankers' Instagram account and attached the intimate sexual image of the victim and the offender and the message stating, "Don't need your OF (only fans) I'll post for free". The co‑offender sent this message to the Instagram account of the victim. The victim asked where the image came from and the sender wrote, "Drew has posted it everywhere".

134. The victim is unaware of when this photo was taken but did not give permission for the accused to send this image to any person. It was agreed during the hearing of the appeal that the intimate image that was posted on social media showed the torso of both the victim and the offender in an act of intercourse, that is penile-vaginal intercourse, and they are both naked.

135. On 14 May 2022, the co-offender used an Instagram account and sent the victim a message stating, "Wow, I seen your arsehole in a video today. Let us have a crack at it." The victim saw this message and did not reply.

The offence of use carriage service to menace, harass or offend

136. The victim received multiple calls from contacts she believes is the offender attempting to communicate with her. Some of these included two calls received on 11 May and one call received on 14 May. The victim answered this call and heard Drew on the other end and he said, "You made an only fans and why would you post your pimply box all over the internet?" The victim immediately hung up. There are also multiple calls from a no caller ID. The victim has requested that the offender stop trying to contact her on multiple occasions. The offender has continued to attempt to contact the victim both directly and indirectly through other people.

137. The appellant was offered the chance to participate in an interview with police, which he declined. All conversations between the offender and the victim and the co-offender were recorded because they were on South Coast Correctional Facility phones.

138. Those facts do disclose serious objective criminality. There is no doubt that stern sentences must be imposed upon persons who intentionally distribute intimate images. They cause significant distress and concern to the victim involved and once they are distributed they cannot be retracted, so the harm that is done to the victim is ongoing.

139. In relation to the offences of stalking and intimidating the victim, they are domestic violence offences. Again, the Court takes a very stern view in respect of domestic violence offences. That is particularly so in relation to this offender because he has a criminal history, including many domestic violence matters.

140. The material tendered on the severity appeal was the same as that tendered on the sentence proceedings, with the exception of one exhibit which was a further letter from the offender, addressed to the magistrate. It was marked exhibit 3 in the severity appeal proceedings.

141. The letter indicated that the offender accepted full responsibility for his actions and he was very sorry for what he had done. He explained that he had been in a relationship with the victim for eight years. He described her as his best friend, and at that stage indicated that he planned on spending the rest of his life with her. In that same letter he asked the Court to allow communication between himself and the victim and he said that his actions would never be repeated.

142. The Crown also tendered during the severity appeal the court attendance notices for seven offences that appear on the offender's criminal history. Those seven offences related to the very same victim, Lucy Howe.

143. Mr Conn who appeared for the offender in relation to the severity appeal relied on written submissions. The Crown relied upon oral submissions. On behalf of the offender it was conceded that a full-time custodial sentence was appropriate. The ultimate submission to the Court was that taking into account the offender's subjective circumstances the Court could reduce the overall aggregate sentence.

144. The subjective circumstances relied upon were as follows, that the offender is still relatively young, that he has some prospects of rehabilitation if he is supported, and he had commenced certain rehabilitation programs, and also that he had family support and an employment opportunity upon his release from custody.

145. The Crown submitted that the appeal should be dismissed principally because strongly deterrence sentences are required for this kind of offending, particularly in circumstances where the Crown submitted that it was clear that the offender did not accept the end of the relationship.

146. The Crown also submitted that the offender did not have good prospects of rehabilitation, that he had multiple previous breaches of court orders, and the words used in the offending were objectively serious. Most particularly, he told the victim that an AVO would not protect her. The Crown further submitted that there has been a generous finding of special circumstances.

147. Having regard to the objective seriousness of the offending, and the offender's previous criminal history for like offences, I regard the indicative terms with respect to the aggregate sentence as lenient. I do not propose to vary the indicative terms. Further, I also regard the fixed terms for the first offence of use carriage service to threaten serious harm, as appropriate, and also the second offence of use carriage service to menace, harass or offend as appropriate. That is particularly so because these are domestic violence offences. Further, I also regard the finding of special circumstances as appropriate in all the circumstances.

148. My formal orders in relation to the severity appear are as follows:

149. The appeal is dismissed.

150. I confirm the convictions and orders of the Magistrate.

Sentence proceedings

151. I will now return to the sentence proceedings. I am required to determine the commencement date of the sentence. The offender has spent two broken periods of time in custody, that is he was in custody between 16 December 2020 and 24 November 2001, a period of 11 months and 8 days. He was then granted bail. He was returned to custody on 31 January 2022, and has remained in custody until today, a period of 13 months and three days. Accordingly, his total time spent in custody is 24 months and 11 days.

152. In determining the commencement date of the sentence, I have, firstly, determined what portion of that time should be referable to the sentences he has served while he has been in custody. He has served three sentences whilst he has been in custody. Firstly, for an offence of contravening an apprehended violence order, he served a six month non-parole period between 16 December 2020 and 15 June 2021. For a further offence of contravene apprehended violence order, he served a fixed term of six months between 31 January 2002 and 30 July 2022, and he has also served the aggregate sentence, which was the subject of the severity appeal, of 18 months with a non-parole period of ten months commencing on 11 October 2022. The non‑parole period due to expire on 10 August 2023.

153. He has also served the two fixed terms for the Commonwealth offences, use carriage service to threaten serious harm, a fixed term of six months from 11 April 2023 to 10 October 2023; and for the offence of use carriage service to menace, harass or offend, a fixed term of two months from 11 April 2023 to 10 June 2023.

154. I have had the benefit of the facts for all of those matters and notionally I propose to allow a period of 11 months to be served solely referable to those sentences. His total time in custody of 24 months and 11 days, taking into account the 11 months that are notionally referable to the sentences served, leaves a period of 1 year 1 month and 11 days. I propose to backdate the sentence imposed today by 1 year 1 month and 11 days, which will mean the sentence will commence on 20 January 2022.

Determination

155. In determining the appropriate sentences, I have taken into account s3A, Crimes (Sentencing Procedure) Act.

156. Pursuant to s5(1), Crimes (Sentencing Procedure) Act, having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate for each offence.

157. I have taken into account the maximum prescribed penalties, the standard non-parole period, the offender's subjective circumstances, and also the objective seriousness of each offence.

158. I propose to impose an aggregate sentence pursuant to s53A(1), Crimes (Sentencing Procedure) Act. Pursuant to s 53A(2)(b), the indicative terms are as follows:

155. In relation to the offence of accessory after the fact to robbery armed with an offensive weapon, the starting term is three years, discounted by 25% for the plea of guilty, leaving a total term of two years and three months.

156. In relation to the offence of aggravated break and enter and commit serious indictable offence, taking into account the two Form 1 offences, the starting term is four years, discounted by 25% for the plea of guilty, leaving a total term of three years and the non-parole period is 18 months.

157. In relation to the offence of possession of an unregistered firearm in a public place (aggravated) the starting term is four years, less 25% for the plea of guilty, leaving a total term of 3 years.

158. In relation to the offence of accessory after the fact to steal from person, the starting term is 12 months, discounted by 25% for the plea of guilty, leaving a total term of 9 months.

159. In relation to the offence of common assault, the victim being Ross Smith, the starting term is 12 months, less 25% for the plea of guilty, leaving a total term of 9 months.

160. In relation to the offence of common assault concerning Mr Gallo, the starting term is 12 months, less 25% for the plea of guilty, leaving a total term of 9 months.

161. Mr Brown, in relation to each of those offence you are convicted.

162. I sentence you to a total aggregate sentence of 6 years to date from 20 January 2022 and expiring on 19 January 2028. I fix a non-parole period of three years to date from 20 January 2022 and to expire on 19 January 2025. You will first become eligible for parole on 19 January 2025.

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Decision last updated: 10 July 2023