R v Emerson

[2014] NSWDC 326

District Court

New South Wales

Medium Neutral Citation:	R v Emerson [2014] NSWDC 326
Decision date:	23 October 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Offender sentenced to imprisonment for four and a half years with a non-parole period of two and a half years.
Catchwords:	CRIMINAL LAW - sentence - aggravated break and enter and commit serious indictable offence - armed home invasion - motivation - seeking revenge following assault on offender’s daughter - gravity of offence - just below the middle of the range of objective seriousness - terrifying experience for victim - extensive prior criminality - need for specific deterrence - now well supported by family and community - prospects of rehabilitation reasonable but not good - plea of guilty at earliest opportunity - 25% discount - special circumstances for adjusting ratio between head sentence and non-parole period - 55% of overall sentence - little weight on problematic upbringing - holds a trusted position of employment in custody - desire to fit in with the community - need for lengthy period of supervision upon release on parole - has accepted responsibility for criminal conduct - Form 1 for three offences taken into account
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2)
Category:	Sentence
Parties:	Regina (Crown) Darren Alan Emerson (Offender)
Representation:	Counsel: C Mendes (Offender) Solicitors: A Thomas, NSW Office of the Director of Public Prosecutions (Crown)
File Number(s):	2013/00361495

Judgment

1. When Darren Emerson received some news about his daughter being assaulted, he was shocked and angry. But he was also fuelled by alcohol. He set out to find the culprit. His judgment was impulsive and obviously affected by the alcohol. But that judgment also extended to who the culprit was who perpetrated the crime on his daughter. Mr Emerson took it upon himself to select the culprit and administer the punishment by invading the home of a woman. He had a knife. The police and the legal system go to a lot of trouble to determine who the perpetrators of crimes are. Not so Mr Emerson. He took it upon himself to select the culprit and administer a very serious shock to her.

2. I am sentencing Mr Emerson for the crime known as aggravated break and enter and commit serious indictable offence. It is an offence against s 112(2) of the Crimes Act 1900. Parliament regards the crime very seriously. One can tell that by the fact that Parliament has not only fixed a maximum of 20 years imprisonment to the crime, but has also fixed a standard non‑parole period of five years to the crime.

3. Mr Emerson has asked me to take into account, when I am sentencing him for this crime, three other offences which were committed at the same time. They are break and enter and steal, another break and enter and commit serious indictable offence and destroying and damaging property. I will take those three offences into account when I am sentencing him for the one crime that he has pleaded guilty to and I have signed a certificate to that effect.

4. First I should say something about what happened. This is important because a judge needs to keep firmly in mind the facts of a crime as well as the personal circumstances of the offender.

5. It was a Saturday night 30 November 2013. Mr Emerson was enjoying his evening at home over a couple of beers. Of course there is no harm in that at all. However, at about half past 7 he got news that his daughter had been subjected to an assault. He and his partner went to see her. They saw that indeed she had some very nasty injuries. I have some photographs of the injuries which included bite marks. They drove her to the accident and emergency department at Albury Hospital where she was treated.

6. Mr Emerson and his partner went back home. He had a few more beers and then at about 10 o’clock he received information, the agreed facts say “from his daughter’s boyfriend in relation to the identity” of whoever it was who assaulted his daughter.

7. Mr Emerson drove to a friend’s house in Lavington where he had a few more beers. Then he drove to an address which he had been told the culprit lived at. It was in Lavington. He parked nearby and knocked on the door but no-one answered. So he went back to his friend’s place and drank more. By this time it was the early hours of the Sunday morning, 1 December 2013.

8. He went back to the address in Lavington where he thought the offender lived and knocked on the door again. This time he walked down the side and got into the back door by climbing over a wall. He broke through a window beside the back door and opened it up and went in. He walked through the house looking for the people he thought were the offenders. He did not find anyone so, as the facts say, he “decided to smash it up, turn a number of items inside the unit including a kitchen table, refrigerator, glass cabinet, dining room table and chairs and a ceramic pot”. That is the malicious damage that I am taking into account.

9. There was a flat screen television. He unplugged it and carried it away, back to his friend’s house. That is the break, enter and steal offence that I am taking into account when I am sentencing him.

10. Not satisfied, Mr Emerson went back a third time at about 2 in the morning. A woman had returned to the unit in the meantime. She had found the state of the unit and phoned the police. So when Mr Emerson knocked on the door, she thought that the police had arrived. Instead, when she opened the door only slightly, Mr Emerson was there and he “forced the wooden door open the rest of the way and entered the house”. He was carrying a knife in his hands. He “threatened the victim, demanding to know who resided at the unit”. That threat with the knife amounted to the aggravated break and enter and commit serious indictable offence that I am taking into account when I am sentencing him.

11. Mr Emerson asked the woman “if the people he was told had assaulted his daughter lived at the unit” and whether they were there. The woman told him that they were not at home. He walked outside and she closed the front door and called the police again.

12. Still not satisfied, Mr Emerson went back a fourth time. The woman saw him standing in the kitchen. He was still holding the knife. She was on the phone to the police. He walked through the kitchen “and into the dining room towards the victim, holding the knife in his hand”. Understandably, the woman was very concerned for her safety and she grabbed a tyre lever, all the time staying on the phone to the police. The facts record that Mr Emerson “walked towards the victim and then turned away from the victim and walked down the hallway towards the front door”. This time he left for good.

13. The police were obviously alert to what was going on and they intercepted Mr Emerson. They found a knife and a TV in his car. They also breath tested him and his reading was 0.16 which is in the high range of prescribed concentration of alcohol.

14. Mr Emerson was arrested and interviewed and admitted what he had done. He agreed that he had gone to the place to confront the woman about identifying the people that assaulted his daughter. He agreed that he had gone there to assault whoever it was but “agreed that he did not know the identity of the persons who assaulted his daughter and that he did not know the victim”. He agreed that she did not match the description of those who he had been told assaulted his daughter.

15. Anyone can see from that account of what happened how serious the crime is and why Parliament regards a crime such as this so seriously.

16. Mr Emerson has been in custody since his arrest on 1 December 2013 and his sentence will date from then. I formally convict him of the offence of aggravated break, enter and commit serious indictable offence.

17. Part of the material which a judge has to take into account in sentencing an offender is whether the offender has a criminal record. A person may come before the Court with a clean record. On the other hand, a person may come before the Court with a record of prior offences. Mr Emerson’s record is long and various. He has spent a good amount of time in gaol. As long ago as 1988 he was sent to gaol for break, enter and steal and malicious damage to property. The same happened in 1993 including a breach of a community service order. Yet again he was sent to gaol in 1997 and again in 1999, and most recently in 2007. He is a person who, by his criminal activity, has inflicted a good deal of harm on the community.

18. It is also important for a judge to take into account factors which are personal to the offender when sentencing the offender. Mr Emerson is well supported in his family environment. He is in a relationship with a woman, Tanya Faulkner, who has provided a helpful affidavit which became exhibit 1. She is the mother of eight children. Two of them are Mr Emerson’s children. All of them regard him as their father.

19. When he was last released from custody in 2007, Ms Faulkner said that “he got a job almost immediately”. Things were going well, he was happy, not drinking much, and the relationship within the family grew “and we became very close”. He was a very good partner and father. Ms Faulkner has been visiting him regularly in custody. He became redundant in a job in the past and re-educated himself, obtaining a certificate in cleaning operations. He is very houseproud.

20. The daughter who was injured was Ms Faulkner’s daughter but Mr Emerson “has been very close” to her for many years and she regards Mr Emerson as if he were her own father. She said how upset Mr Emerson became when he learned about the assault on his daughter. When they saw her they could see that her arms were swollen and she “had a number of bite marks on her arms that looked like dog bites and had broken her skin”. There were welt marks. There is a police statement tendered by Ms C Mendes, who appeared for Mr Emerson, confirming the injuries.

21. After Mr Emerson disappeared, Ms Faulkner tried to track him down but the next she heard of him was a distressed and remorseful call from the Albury Police Station.

22. Ms Faulkner related some problems that Mr Emerson had had in his upbringing with an alcoholic father and violence. He was the oldest child and he, said Ms Faulkner, “took on the role of protecting his mother and siblings”. That has to be seen in the context, of course, that he is now 45 and no doubt other judges and magistrates have in the past taken that into account. Ms Faulkner was hoping for “a lengthy parole period when he is released from custody” this time. She said that “he really struggles when things go wrong for him and the community. He just isn’t resilient.” They attend a church whose members are very supportive. Indeed, there is a reference from a Ms Schubert dated 3 October 2014 confirming that.

23. Mr Emerson himself gave evidence before me on Tuesday. He apologised for the way that he had behaved and acknowledged that he should not have done what he did. He confirmed the loving and supporting family that he has with his partner and the children. In custody Mr Emerson holds down a trusted position and also provides a peer support role for younger inmates. He is prepared to undergo counselling. He no longer uses prohibited drugs. In 2007, the offence he committed involved violence against his brother. He said that he “wants to fit in with the community” again when he is released.

24. Ms Mendes provided some very helpful written submissions which became MFI 1 and Mr A Thomas, who appeared for the Director of Public Prosecutions, addressed me verbally about the factors to take into account.

25. I agree with Ms Mendes that the action was impulsive and that Mr Emerson’s judgment was affected by alcohol. To that extent it was unplanned. It was also an action or behaviour which was affected by strong emotions generated by seeing the injuries on his daughter. The behaviour did occur over a relatively short period of time and in that sense it was a continuing course of conduct. But still, one has to appreciate that he entered the house three times, and on a fourth occasion, which was the first in order of time, approached the house and knocked on the door.

26. Ms Mendes asked me to find that Mr Emerson “did not confront” the victim of his offence. I disagree with that. I think he did confront her. He walked towards her with a knife. I think it is fair to say that he did not threaten her with the knife, although she was obviously intimidated which is part of the offence which I take into account already. So I am not satisfied that he threatened the victim but he certainly did confront her. It must have been a terrifying experience for the victim of his offence.

27. Mr Emerson has shown some remorse. I cannot describe his prospects of rehabilitation as good because of his record and this crime which he has committed. But I think that his prospects of rehabilitation are reasonable given the strong support he has at home and within the community including his church. Also, as Ms Mendes pointed out, he does not have a drug addiction. He obviously has a problem with alcohol and the criminal justice system, having committed this crime under the influence of alcohol, including driving. Mr Emerson accepts responsibility for his criminal conduct and his rehabilitation prospects are illustrated by the trusted position he holds in custody.

28. Ms Mendes submitted that this particular offence “could be appropriately categorised as being of low objective seriousness”. Mr Thomas, on the other hand, submitted that it was not at the bottom of the range. I think he is right. I do not regard it as low. I think Mr Thomas in correct in arguing that it is just under the middle of the range of objective seriousness when compared to other examples of this kind of crime.

29. I also accept Mr Thomas’ submission that specific deterrence is very important in this case. Mr Emerson has inflicted himself on the community by breaking and entering in the past. This cannot be tolerated. The sentence I impose has to take into account that he needs to be stopped from doing those sorts of things. As Mr Thomas also submitted, general deterrence is important in this case. It is very important for members of the community to know that they cannot simply go about committing very serious crimes because they feel, rightly or wrongly, that they have been aggrieved or that a crime has been committed against them or against one of their loved ones.

30. Ms Mendes submitted that there were special circumstances for adjusting the normal non-parole period. Normally a non-parole period is 75% of the head sentence. It can be adjusted down in special circumstances. Ms Mendes points to Ms Faulkner’s affidavit and to the support which her client needs in the community. I agree with that and in due course I am going to reduce the non-parole period from the normal 75%. I have also been provided with some statistics from the Judicial Commission.

31. There are four particular factors which count against Mr Emerson in this sentencing exercise. One is the significance of deterrence, both deterring him and other members of the community. The second is that in sentencing him for the one crime, I have to take into account three other crimes. The Court of Criminal Appeal has made it clear that that must be reflected in an increase in the sentence. The third is that he has a criminal record which includes similar offences. That places additional weight on the aspect of specific deterrence and also on the need to protect the community by the sentence which I impose. Finally, the offence was committed in the home of the victim. Parliament regards somebody’s home as so important that it has specified that it is an aggravating factor for a crime to be committed in their home. The victim of this crime was entitled, particularly in the early hours of the morning, to feel safe in her house. Instead she was confronted by a drunken man who had broken into her house and was holding a knife.

32. Bearing all those factors in mind, I would regard an appropriate starting place for an overall sentence as being six and a half years imprisonment. However, Mr Emerson has pleaded guilty to the offence. He pleaded guilty at the earliest opportunity. That means the law allows him a 25% discount on that sentence. I am going to reduce the sentence by that amount and a little more to round it off to four and a half years.

33. For a sentence of four and a half years, the normal non-parole period would be about three years and four months. That is about 75%. But because of the special circumstances referred to by Ms Mendes, I am going to reduce the non-parole period to two and a half years. That represents about 55% of the overall sentence. So the sentence will be one of four and a half years with a non-parole period of two and a half years.

HIS HONOUR:   Mr Emerson, I am going to sentence you now. If you would stand up please?

34. I set a non-parole period of two and a half years to commence on 1 December 2013 and that expires on 31 May 2016. The balance of the term is two years. That commences on 1 June 2016 and concludes on 31 May 2018.

HIS HONOUR: So your overall sentence commenced last year when you were arrested, 1 December 2013, and your overall sentence expires four and a half years later on 31 May 2018. The first date on which, on the information I have, you will be eligible for parole is 31 May 2016.

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Decision last updated: 11 May 2015