R v Eager

[2021] NSWDC 848

District Court

New South Wales

Medium Neutral Citation:

R v Eager [2021] NSWDC 848

Hearing dates:

11 November 2021

Date of orders:

11 November 2021

Decision date:

11 November 2021

Jurisdiction:

Criminal

Before:

Judge Haesler SC

Decision:

Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years and 4 months

Catchwords:

CRIME — Apprehended violence orders — Contravene apprehended violence order

CRIME — Domestic violence — “Domestic violence offence” — Stalking or intimidation — Assault occasioning actual bodily harm

CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation

SENTENCING — Aggravating factors — Breach of conditional liberty — Home of victim

SENTENCING — Mitigating factors — Plea of guilty —Diligent completion of residential rehabilitation program

SENTENCING — Penalties — Imprisonment — Aggregate sentence

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Offender’s background — Role of offender — Remorse — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Hili v The Queen (2010) 242 CLR 520; [2010] HCA

Muldrock v The Queen (2011) 244 CLR 120

Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

R v Burton [2008] NSWCCA 128

R v Dunn (2004) 144 A Crim R 180

R v Fernando (1992) 76 A Crim R 58

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Texts Cited:

Corrective Services NSW, “COVID-19 (coronavirus) Response”

accessed 7 August 2021

D Ritchie, “Does Imprisonment Deter? A Review of the Evidence" (April 2011) Sentencing Advisory Council Victoria 1

J Holmes “Crime and Justice Statistics Bureau Brief: Re-offending in NSW” (2011) 56 NSW Bureau of Crime Statistics and Research 1

W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category:

Sentence

Parties:

Lee Dillon Eager (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Solicitors:
M Kwan for Legal Aid (NSW) (the offender)
A Hughes for Public Prosecutions (NSW) (the Crown)

File Number(s):

2021/81081; 2020/265755; 2020/280461

JUDGMENT – ex tempore revised

1. When he was before the Local Court Lee Dillan Eager indicated that he would accept responsibility and plead guilty to two serious offences:

1. Aggravated Break and Enter and Commit a Serious Indictable Offence, indictable offence being, Assault Occasioning Actual Bodily Harm, and the circumstance of aggravation being that, he knew that people were in the building that was broken and entered: s 112(2) Crimes Act 1900 (NSW). That offence carries a maximum penalty of 20 years imprisonment and standard non-parole period of 5 years.

2. Intimidation with intent to cause fear of physical or mental harm: s 13(1) Crimes (Domestic and Personal Violence) Act2007 (NSW). It has a maximum penalty of 5 years imprisonment.

2. The offences occurred on 20 March 2021. Eager was arrested on 22 March 2021 and has been in custody since his arrest. The offences occurred in breach of a Community Correction Order and a Community Corrections Release Order for two drug related matters. The breaches are admitted, and I have been asked to deal with those breaches. I note, at this stage that none of those matters would have crossed the s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) threshold requiring custodial sentences. But the fact that the principal offences were committed in breach of promises to be of good behaviour, aggravate the sentences that I must impose. I will not double count those matters.

The Agreed Facts

3. The Agreed Facts were supplemented by a viewing of video recordings from a taxi. They highlight the offender’s degree of agitation, lack of concern for himself and lack of concern for others, that accompanied these events. The offender has professed, and continues to profess, that due to ingestion of a significant quantity of the drug Xanax, he has no memory of the events. But he has seen what he did on the recordings on a number of occasions. He says he is “gutted” by what he did, particularly, as his victim, who was then a person he professed to love, is now deceased.

4. I have heard evidence in the past that the drug Xanax can cause loss of memory. But that he now no longer remembers the incident does not detract from what he did and is clearly depicted in the recording. It is clear that he was agitated, and it would appear consistent with the evidence I have received, that he was significantly drug affected on this day. He was unconcerned for himself; he was unconcerned for others. The fact that he can no longer remember the event does not reduce the seriousness of his offending. The fact that he committed offences while significantly affected by drugs to which he had become addicted, again, does not mitigate. Drug use might help explain what he did and helps me understand his irrational behaviour. But his drug use highlights the danger that he places his victim in during the incident.

5. Eager told his psychologist that what he was saying and doing was “rambling shit” due to drug intoxication, and that he was in a very dark place at the time. Again, the facts, drug induced or not, highlight how dangerous his activity was to his victim. She was not to know, and frankly no one was to know, whether he was capable of, or was intending to, take his life and perhaps hers. His drug use highlights the objective seriousness of what occurred.

A chronology of events

6. The Agreed Facts indicate that on 20 March 2021 Eager was at Wollongong Emergency Department. He had injured his little finger. He left the hospital intending to speak to his then partner who was at work. He took a taxi to her workplace. He was rambling but also focused. Rambling because he somehow blamed his partner for not attending the hospital where he had been waiting. On reflection, he now understands that he was being kept waiting because his behaviour at the hospital indicated that he was drug affected.

7. He arrived at his partner’s place of work. She would not let him in. He threatened to kill her. He complained about waiting at the hospital. He was speaking to the complainant through the locked door, which she understandably refused to open. He threatened to kick the door in. He abused her for “not giving a fuck” about him. He used derogatory terms toward her. He then picked up a large cement block and broke the glass in the door.

8. The complainant ran from him. He followed and grabbed her. He punched and kicked her multiple times to the head and body. He pulled her hair with significant force. She described “seeing stars.” At the same time her co-worker was screaming at him asking him to stop. He grabbed her belongings, abused her further and took her to the cab.

9. She was trying to mollify him by apologising to him, he responded with abuse. She tried to calm him, as is obvious from the CCTV, but he was still making derogatory remarks about her to the taxi driver. At one point he said to her, “We’re going to kill each other and bury each other. I’ve dug holes and everything. The holes are dug, we are going to sleep.” And then further derogatory terms were uttered. He made further threats about them both cutting each other’s throats.

10. At one point she said, “Lee, look at my face and my head.” She was distressed and in pain and the offender said, "What do you mean? What happened to your face and head, did you fall over?" He said, "Are you serious?" And held up his injured finger. He gave an explanation for what he said in his evidence today. He still does not appreciate the point being made by the prosecutor’s question – that his actions that day showed concern only for himself.

11. He then took the cab to another location. As the cab left and it would appear that a mutual friend at the location asked him to pull up and stop fighting with the complainant. It was only on 22 March 2021 that he was arrested. He was with the complainant. It would appear that she was still shaken as at the time she told the police officer, “He’s going to think I did this, called the cops. He's going to kill me. You can’t help me, he’ll put me in a hole, it’s ready.” Indicating that, drug affected or not, the threats he made in the cab were still operating on the complainant at the relevant time.

12. She was examined that day at Wollongong Hospital. Clumps of hair her had been pulled out. Her head was acutely inflamed, swollen and very tender. She was also tender over her abdomen. The injuries were consistent with having her hair pulled forcibly.

13. When arrested, as he maintains today, the offender told police he was taking a combination of illicit and prescription drugs and had no real memory of the events.

14. The objective facts reveal this was a particularly serious event. Although I am prepared to accept that his actions were spontaneous, it is not the complainant’s fault that she locked the door against him. Once that door was locked against him and he could not get what he wanted, that is to take her from her place of work, she was personally targeted. A brick was used. The distress she and her co-worker were suffering is clear from what I heard on the recording.

15. Eager obviously knew people were there, an element of the offence. He obviously caused her actual bodily harm, an element of the offence, accompanied by blows, some to the head. Both during the incident, but also afterwards, he targeted her with serious threats that were derogatory in nature, and one that created in her a fear that she may well be killed.

16. Eager’s actions that day indicated that somehow in his mind he thought he was trying to help her. He now, I am prepared to accept, realises how wrong that feeling was. His behaviour was controlling and cruel. Whilst spontaneous and unplanned, it was a serious example of a domestic violence type offence. It was committed without any regard to the possibility that he would be discovered. While CCTV enabled us to see what occurred in the cab, it did not prevent this offence occurring.

Maximum penalty and standard non-parole period

17. I have to have regard to the maximum penalties. I am required to give content to the standard non parole period. I do not however, engage in a staged approach to sentencing: Muldrock v The Queen (2011) 244 CLR 120 at [27] to [28]. My assessment of the objective seriousness of the offence must be synthesised along with all relevant matters. Every case and every offender are different. Both the offence and the offender require individualised justice: Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [46] applying Hili v The Queen (2010) 242 CLR 520; [2010] HCA.

Criminal record

18. The offender has a criminal record going back many years. But apart from one assault matter some years ago, there are no offences of a similar nature to these offences on his record. It would appear from all the material before me that he was, as is described in one of the bond matter fact sheets, “A habitual drug offender.” On all the material before me, he took up drug use when he was a young teenager, too young to make rational choices about drug use.

19. It also appears from the record that there was a gap in his offending between 2005 and 2018, and he has demonstrated some capacity to lead a normal life in the community.

20. He is not a first offender; he is not entitled to the leniency that is often given to first offenders. But it would appear he rarely commits offences involving violence.

Victim impact

21. The complainant is now deceased; her death had nothing to do with the present offence. No victim impact statement was put before the Court. But the fact there is no victim impact statement does not give rise to an inference the offence had little or no impact on her: s 30E(5) Crimes (Sentencing Procedure) Act 1999.

22. The offence took place at her place of work. The work she did is irrelevant to the Court’s determination. All women have a right to determine their own path in life, and all women, in fact everyone in the community, must be protected from unnecessary, and in this case, irrational violence. Everyone is entitled to be safe at work, everyone is entitled to feel safe in their relationships, particularly from people who profess to love them. All matters I take into account when I come to formulate an appropriate sentence.

COVID-19

23. The offender has been in custody throughout the COVID-19 pandemic. His custody will continue during that pandemic. I do not, and cannot, ignore the impact of the pandemic on prisoners. It has entered our gaols and to date no one to my knowledge has received the early parole that is available in theory. He has been, as all prisoners are, subject to restraints and lockdowns: Corrective Services NSW, “COVID-19 (coronavirus) Response” accessed 7 August 2021.

24. Eager has been able to find work while in custody and he has been able to engage in programs. But his access to friends and family and others is restricted to use of a tablet, which he says has been provided to him. He has been able to do some research as to what steps he needs to take next, in order to take advantage of rehabilitation programs within the gaol.

25. We all feel heightened anxiety and concerns about the pandemic, but prisoners who have no control over their lives about where they live and who they associate with, can have such feelings exacerbated. Although he expressed in evidence no particular concerns, I nevertheless take into account how he is serving his sentence during the pandemic.

Subjective case

26. Eager was born in 1983. He has been before the court for drug related matters and one assault many years ago.

27. He grew up locally in a Housing Commission area. He was raised by his mother. Those facts are no impediment to leading a law-abiding life, far from it. But it appears that when very young, his school and home life were disrupted by him mixing with antisocial peers and older people who introduced him to the use of illicit drugs.

28. It would appear from the history he gave, which is not controversial, that for a period of time he lived by working for those who dealt drugs in our community. It is clear that that association, when too young to make rational choices, compromised his childhood and has compromised him to this day, including his capacity to mature and learn from experience. While there are none of the factors that were referred to in R v Fernando (1992) 76 A Crim R 58 and picked up from that case in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, there are, as Mr Kwan points out in his submissions, matters in his background that indicate that his moral culpability can be somewhat reduced.

Drug use

29. I have referred already to his drug use. It does not mitigate. It helps me understand how this offence occurred. It has particular relevance to the structure and disposition of this sentence because if, and I say if, he gets sufficient help in custody. If, as he now professes, he has some realisation that he needs rehabilitation in the community, he may avoid a repetition of this offence and repetition of returning to gaol. Here, given the risk of a return to gaol, if he resumes drug use, subjective deterrence is a real significant factor: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

30. I am indebted, as always, to a comprehensive ‘warts and all’ report from Ms Godbee. The formal basis and facts upon which she makes her determinations and diagnosis were supported by evidence on oath, which is not significantly challenged. She notes Eager’s personal history, to which I have briefly referred, and I have had regard to. She notes, his suicidal ideation and the matters to which I have already referred. It is clear that prior to this offence his drug use had led to a deterioration in his mental state; that is obvious from his behaviour. It is clear that if he can respond to his long-term drug problem, he may be able to lead a law-abiding life in the community.

31. He indicated to Ms Godbee that he was now stable and felt that he was confident enough not to need extensive intervention. Whether out of practical common sense or out of self-interest, he has now realised that it is absolutely essential that he engage in treatment in custody and in the community. Whatever his motivations are, that is an encouraging sign, because he may not get parole unless he engages in programs. He tells me he is aware of and has taken steps to engage in the various Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Addiction programs. And they would be absolutely essential, in my view, to the question of whether he gets parole.

32. As presently advised, it almost essential that he engage in some form of Intensive Drug and Alcohol Treatment Program to identify his triggers for relapse and to develop concrete strategies to avoid these triggers, as Ms Godbee recommends. In his evidence today, he said he has reconsidered his negative aspects to such programs. I will give him an opportunity to engage in community programs by a finding of special circumstances.

Remorse

33. Eager has expressed remorse today. He has, by his plea, accepted responsibility for his actions. I am guarded, as Ms Hughes who appears for the Director submits, as to whether he has real insight into his offending behaviour. But I accept he now, having viewed the CCTV, accepts that his behaviour was unacceptable. It would appear however, that he still blames the drugs, not his underlying attitudes. It is those underlying attitudes that must be addressed, hopefully in the EQUIPS programs.

34. There are two matters for sentence. There was one incident. They have many common features. But the s 13 Crimes (Domestic and Personal Violence) Act intimidation offence continued after what occurred during the break and enter, and one sentence could not fully encompass the other. There must be some accumulation. The total sentence must be just, and appropriate measure of the total criminality involved.

35. Mr Kwan asked that this sentence not crush Eager’s hopes for rehabilitation in the future. Whether a sentence crushes someone often depends on the perspective of the observer, whether they be offender, the victim, or the community: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301. But while this matter is serious and requires a period in custody, it is not a matter that calls for anything like the standard non-parole period or the maximum penalty on the scale of matters.

36. The sentence can be structured to enable a minimum period that must be spent in custody, but to also allow for period of residential drug and alcohol rehabilitation, although it is a matter for the parole authority. He will need considerable assistance dealing with his addiction problem in the community and in custody to help him to adjust to normal community life.

37. In making that finding, I note the minimum period in custody must reflect the gravity of his offences and the purposes of sentencing. It is also important to note that offenders who do receive parole supervision were less likely to commit serious offences on release when compared with those who are released unconditionally: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497; J Holmes, “Crime and Justice Statistics Bureau Brief: Re-offending in NSW” (2011) 56 NSW Bureau of Crime Statistics and Research 1.

Submissions

38. I have received oral and written submissions from Mr Kwan, for the offender, and Ms Hughes, for the Director of Public Prosecutions. They were helpful. They covered all relevant matters and they have informed this judgment.

39. Mr Kwan put appropriate stress on the offender’s childhood exposure to, and engagement in, antisocial activity, and how that childhood experience had formed the man for sentence. He indicated that Eager had previously shown some capacity to lead a normal life in the community. He said that I could make a positive finding that with help he would not reoffend. While I cannot make that finding, I will give him the opportunity of proving himself by allowing for a lengthy period on parole. But if he does not engage, if he thinks that he is better equipped to chart his own course than the professional recommendations of people like Ms Godbee, he is wrong.

40. I exercise some caution because Ms Godbee, in her report, indicates that he makes grandiose comments about himself. So, his own belief in himself and his capacity may hinder his engagement in rehabilitation programs.

41. Ms Hughes properly highlights the serious nature of the offence which was, she says correctly, a violent rampage at the complainant’s place of work. She notes a degree of scepticism about whether he is truly remorseful, but also fairly sets out the matters that need to be taken into account when it comes to assessing the objective circumstances of the offence, and in discussion, it is clear that it is everyone’s intention that I do not double count matters of aggravation but focus upon both the seriousness of what was done and the subjective case.

Synthesis

42. Synthesising all those matters. While I recognise the impact of his childhood and Eager’s long-term drug addiction, I have to focus on what was done. Mitigating circumstances can go only so far. But Eager must be returned to the community. He should be is returned in a better position to deal with the stresses and strains of work, of relationships, of caring for family. He needs help to avoid relapse into drug addiction. He will need all the help that is offered to him, and he is prepared to take.

43. After my review of all the material there is still an underlying fear that he believes, somehow, that what he was doing was justified. While he says the offending only occurred because he was drug affected, my fear is still there. The courts recognise that domestic violence offences carry with them special dynamics, and as here, it is clear that the victim was personally targeted. The offence was, as the offender now recognises, part of a larger picture. But that larger picture, from all the material before me, indicates that there was continuing and mental violence, with the offender exercising power and control over his victim: R v Burton [2008] NSWCCA 128 at [97].

44. He cannot step away from those underlying factors by saying he cannot remember what he did, even though that loss of memory may be true. The objective facts before me reveal that, on this day, he seemed to believe that what he was doing was justified or could be excused. He saw himself as the victim rather than the complainant. That threat continued up until his arrest. The victim may never have truly felt safe (until her death): R v Dunn (2004) 144 A Crim R 180. She was, however, protected from him by his being remanded in custody.

45. Proper recognition has to be given to the real harm crimes such as this do their victims and the community in general. There is a dilemma in such matters, however, because the law demands that people who offend against women in the way that Eager did be removed from the community. But as a deterrent to violent behaviour gaols have been a dismal failure. Gaol terms break prosocial bonds, they encourage links with other criminals, and in particular, those who engage in misogynous violence. They, rather than discouraging violent crime, can have a crime producing effect: D Ritchie, “Does Imprisonment Deter? A Review of the Evidence" (April 2011) Sentencing Advisory Council Victoria 1.

46. The offender himself spoke of the potential for being stood over in custody. Gaols are an ineffective way of addressing the underlying causes of such crimes, and s 9(3)(g) Crimes (Domestic and Personal Violence) Act says that such offences should be addressed by a coordinated legal and social response, which is why the parole authority should do everything that is possible to ensure that that response continues when he is admitted to parole.

Orders

47. In relation to each matter, you are convicted. I take into account the plea of guilty and reduce the otherwise appropriate sentences for each indicated sentence by 25%. I indicate for the s 112 Crimes Act matter a sentence of 3 years and 9 months with a 2-year non-parole period. For the s 13 Crimes (Domestic and Personal Violence) Act matter, I indicate a sentence of 1 year and 6 months.

48. The aggregate sentence in this matter will be 4 years imprisonment. That sentence will commence on 22 March 2021, with a non-parole period of 2 years and 4 months which will start on that date and expire on 21 July 2023. The parole period is 1 year and 8 months, reflecting my finding of special circumstances. The sentence should expire on 21 March 2025.

49. As I have taken into account the breaches in aggravation of sentence, and because I do not believe that either matters calls for custodial sentences, I will simply say no action on the breaches and confirm the orders made in the Local Court.

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Decision last updated: 28 November 2023