R v Evans

[2006] NSWDC 89

CITATION:	R v EVANS [2006] NSWDC 89
HEARING DATE(S):	27/02/2006
JUDGMENT DATE:	27 February 2006
EX TEMPORE JUDGMENT DATE:	02/27/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See Paragraph 10
CATCHWORDS:	Criminal Law - Severity Appeal from Local Court - Intellectual Disability - Graffiti - Assault - Indecent Exposure
PARTIES:	DPP Samuel David Evans
FILE NUMBER(S):	06/12/0187
SOLICITORS:	DPP Legal Aid Commission

JUDGMENT

1 HIS HONOUR: Mr Evans received prison sentences for five separate offences. Mr Evans has a significant intellectual disability. For many years now the intellectually disabled have been vastly over-represented in prisons and for many years now the services available to them whilst in custody have been the subject of some criticism.

2 In this case there is a particular aspect of the failure of Corrective Services to be able to deal with the intellectually disabled which is of particular importance. Mr Evans has been assessed as not being suitable for community service work. This is simply because the Department does not have the resources to supervise him with his intellectual disability. He is also unsuitable for periodic detention for the same reason. It is not his fault that he is intellectually disabled, and yet the consequences for him could be quite significant.

3 No alternatives to full-time custody seem available. The law is not that I must therefore go down the rungs until I find a sentence which Mr Evans can serve. I must choose from those which are available, that is the most appropriate sentence. In this case I am probably choosing the least inappropriate sentence.

4 Mr Evans committed a number of offences relating to graffiti. His first offence was committed on 25 July 2005 and his second offence committed on 13 August 2005 involved the appellant in graffiti-ing property with his own tag. Police soon learned what the appellant’s tag was, so whenever they saw it they knew that the appellant was responsible.

5 The appellant was also convicted of assault occasioning actual bodily harm in circumstances which came about because of another act of damage by him. I note that he has not been charged for that and I will certainly not sentence him for it, but I mention it only to explain how the assault occasioning actual bodily harm offence came about. The secretary/manager of the golf club which had been graffiti-ed went back to the golf club in order to take photographs of the damage. Whilst there he recognised the appellant as having been a person whom he had seen on security video graffiti-ing his establishment. He observed him at the same time stealing money from a wishing well. When he attempted to detain Mr Evans, Mr Evans fought back, causing the victim to have significant injuries, including fractures to his hand. The fourth offence for which the appellant is to be sentenced involves the assault of an officer in the execution of her duty. The nature of that assault is unknown to me however because the material tendered on the appeal was a photocopy of an original document. Someone had highlighted the original document in such a way that it did not come through on a photocopy.

6 Finally there is an offence of committing an act of indecency. For reasons which are difficult to understand the appellant took it upon himself to expose himself to a woman working alone in a travel agency. He began to masturbate. The appellant was interviewed by police who indicated that he would have expected that his actions would have frightened the victim.

7 For all of those offences the appellant received imprisonment, concurrent terms, the longest of which was eight months with a non-parole period of five months for the act of indecency matter. He has been interviewed by Probation and Parole and Juvenile Justice, and spending one month in custody appears to have been a salutary lesson for him.

8 He presented to Justice Health as teary and distressed and extremely fearful for his safety. Community service would have been an ideal punishment for Mr Evans. It would have been a case of the punishment fitting the crime in that it would have allowed him to give back to the community something he has taken away from it by his graffiti-ing activities. However, as I have noted at the beginning of these remarks on sentence, it is simply not suitable because of his intellectual disability.

9 I consider that in those circumstances it is appropriate for me to note that the appellant has served one month in custody, and taking that matter into account, to release Mr Evans on a good behaviour bond in relation to each of the five matters.

10 The order I make is this; the appeals are allowed. In relation to each of the five matters I order, pursuant to s 9, that the appellant enter into a good behaviour bond for a period of two years from today. During the term of the bond he is to appear before the Court if called upon to do so at any time. He is to be of good behaviour. He is to inform the Registrar of this Court of any changes of residential address and he is to accept the supervision and guidance of the New South Wales Probation and Parole Service, in particular vocational activities that they might arrange, and counselling for any drug and alcohol problems they consider would benefit him.

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