R v Fraser

[2022] NSWDC 36

District Court

New South Wales

Medium Neutral Citation:

R v Fraser [2022] NSWDC 36

Hearing dates:

23 February 2022

Date of orders:

24 February 2022

Decision date:

24 February 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 129-130

Catchwords:

Sentencing - severity appeal - domestic violence offences - contravention of apprehended violence orders - offence against justice - intention to influence witness - driving offences - extensive prior criminal history - credibility and reliability of appellant's evidence explaining offending conduct, given on affidavit

Legislation Cited:

Crimes Act 1900 (NSW) s 323

Crimes (domestic and personal violence)Act 2007 (NSW) s 14

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 23

Road Transport Act 2013 ss 54, 117

Cases Cited:

Browning v R [2015] NSWCCA 147

Lai v R [2021] NSWCCA 217

R v Burton [2008] NSWCCA 128

R v Edwards (1996) 90 A Crim R 510

R v Prospero [2022] NSWDC 26

Van Eeden v R [2012] NSWCCA 18

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of Director of Public Prosecutions
Mr I Fraser (Appellant)

Representation:

Solicitors:
ODPP
Circle Bridge Legal for the appellant

File Number(s):

2019/00076291

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 15 December 2021, Ian Fraser, the appellant, received an aggregate sentence from the Gosford Local Court of 18 months’ imprisonment and non-parole period of 12 months following his convictions for multiple offences stretching over a period from 17 September 2019 to 15 September 2021. The sentence was backdated to commence to 16 September 2021 to allow for the time the appellant had spent in custody.

2. The offences, the indicative sentences and the maximum penalties for the offences are as follows:

Sequence / Section	Offence	Date and Place of Offence	Indicative Sentence	Minimum/Maximum Penalty
H7215005/5 S 323(a) Crimes Act 1900	Acting with intent to influence witness (to wit, send text messages intending to persuade Jacqueline Wilson)	17 September 2019 at Umina Beach	12 months	On indictment: 7 years imprisonment Summary: 2 years imprisonment/100 penalty units
H312802295/1 S 14(1) Crimes (domestic and personal violence) Act 2007	Contravene prohibition of restriction in an apprehended domestic violence order (PINOP: Jacqueline Wilson)	29 December 2019 at Umina Beach Arrested on 29 December 2019	4 months	Summary only: 2 years imprisonment/50 penalty units
H78757842/1 S 14(1) Crimes (domestic and personal violence) Act 2007	Contravene prohibition of restriction in an apprehended domestic violence order (PINOP: Jacqueline Wilson)	6 February 2021 at Umina Beach Arrested on 6 February 2021	4 months	Summary only: 2 years imprisonment/50 penalty units
H82801724/1 S 54(1)(a) Road Transport Act 2013	Drive motor vehicle during disqualification period – prior offence	11 September 2021 at Woy Woy	5 months Disqualified for 12 months	Summary only: 12 months imprisonment/50 penalty units Minimum disqualification: 6 months Automatic Disqualification: 12 months
H326099496/1 S 54(1)(a) Road Transport Act 2013	Drive motor vehicle during disqualification period – prior offence	On 15 September 2021 at Umina Beach	6 months Disqualified for 12 months	Summary only: 12 months imprisonment/50 penalty units Minimum disqualification: 6 months Automatic Disqualification: 12 months
H326099496/2 S 54(1)(a) Road Transport Act 2013	Drive motor vehicle during disqualification period – prior offence	On 15 September 2021 at Umina Beach	8 months Disqualified for 12 months	Summary only: 12 months imprisonment/50 penalty units Minimum disqualification: 6 months Automatic Disqualification: 12 months
H326099496/3 S 117(2) Road Transport Act 2013	Drive recklessly, furiously or at speed or manner dangerous – 1st offence	On 15 September 2021 at Umina Beach	6 months Disqualified for 3 years	Summary only: 9 months imprisonment or 20 penalty units Minimum disqualification: 12 months Automatic disqualification:3 years

CIRCUMSTANCES OF THE OFFENDING

3. Generally, the facts are those which appear from the Police Fact Sheets which were before the Local Court. The appellant affirmed their correctness when interviewed by the community correction officer. Those facts were not expressly challenged by the appellant in this appeal. However, for the purposes of this appeal, the appellant also relied upon an affidavit in which he supplied explanations for his offending conduct. That affidavit was fresh evidence that was not before the Magistrate. Although there is no bar to fresh evidence on a severity appeal, the fact that the explanations are only offered now, on the eve of a severity appeal which, to some extent reflects on events years before, casts some initial doubt in my mind as to their credibility. This was especially so, given the appellant’s extensive past record, but also having regard to the statement in the sentencing assessment report from the community corrections officer, to the effect that he had not tried to minimise his offending behaviour to her. Minimising his offending behaviour is precisely what the appellant now seeks to do with his most recent affidavit, sworn the day before the hearing of his severity appeal.

4. For the first three of the offences, relevant context is that the appellant and the victim, Ms Jacqueline Wilson had been in an ‘on again, off again’ intimate domestic relationship over a couple of years, before separating in March 2019. On 25 June 2019, a final Apprehended Violence Order had been put in place against the appellant for a period of 2 years. Ms Wilson was the person in need of protection.

Seq H72150055/5 (17 September 2019)

5. The appellant was due to attend Gosford Local Court for a domestic hearing with the victim, Ms Wilson, on 18 September 2019. At 3:57pm the day before, the appellant sent a text message to Ms Wilson. After professing his love for her and declaring that there was nothing he would not do for her, the material part of the message was:

“.. do you want me to get Mick to call you to explain how nothing will happen to you if you stay away? Do you want me to leave a few thousand dollars with your Aunty like I said I would?”

6. At about the same time, the appellant sent Ms Wilson a picture message showing his bank balance.

7. At about 5:14pm, the appellant sent a further text message. He apologised to her and the effect of the message was to similarly discourage Ms Wilson from attending Court the next day. He said, amongst other things:

“.. if you want I will get Mick to call you now…We’ve been through a lot but I’m not going anywhere. I know tomorrow has been a big thing but honestly baby if your (sic) not there it all goes away.”

8. Later, when participating in an ERISP interview with police, the appellant admitted his intention to leave $2,500 with Ms Wilson’s aunt if she received a fine for not attending court. Sending her the picture of his bank balance on her phone was intended to show how genuine he was about his offer.

The appellant’s account in his affidavit

9. The appellant swore an affidavit (22 February 2022) in which he sought to explain his offending. He was cross-examined on some of his accounts of his offending.

10. Generally speaking, I was not impressed with the evidence he gave in cross-examination. Repeatedly he acted as an advocate in his own cause, giving rambling explanations that were barely responsive to the questions raised of him. I agree with the Crown’s submission that overall, he accepted no responsibility and showed no real insight into his offending. This also detracts from the weight to be given to his protestation that he accepted responsibility and had learnt lessons about his offending.

11. He deposed to receiving a phone call from Ms Wilson’s aunt, Lynnette Shanks. He deposed to receiving information from the aunt as to Ms Wilson’s attitude towards attending court including ‘financial issues’. As I indicated to the appellant and his legal representative, I do not place any weight on that evidence to the extent it sought to prove Ms Wilson’s actual beliefs (because of its hearsay nature), however, it is relevant to the appellant’s state of mind and carries some weight upon that limited basis. The gist of this was to indicate that it was only in retrospect that he understood that he had acted irresponsibly and that he should have thought through the consequences of his actions.

12. In cross-examination, he said he was aware an AVO was in place, though he did not consider that this precluded contact. The ‘Mick’ that he referred to in the message was a solicitor representing him at the time. He cavilled with the Crown’s proposition to him that he intended to persuade Ms Wilson not to attend and disputed that he was offering a bribe.

Ms Shanks’ affidavit

13. On 22 November 2021, Ms Lynnette Shanks, long after the offending conduct (but before the appellant was convicted and sentenced for this offence), the aunt of Ms Wilson, swore an affidavit.

14. The gist of this affidavit was to corroborate the appellant’s account that he was only offering to supply $2,500 to the victim’s aunt with the intention to cover the contingency that Ms Wilson would be fined if she decided against attending court. As it happened, Ms Wilson was not fined and the money was not supplied. She deposed that the appellant had not expressly stipulated that he was making his offer in order to induce Ms Wilson not to attend Court.

15. To the extent that Ms Shanks purports to refer to Ms Wilson’s state of mind, regarding her willingness to attend court on 18 September 2019, that evidence is technically objectionable as hearsay. Even if it was not, and given that I am effectively dealing with a sentencing proceeding with less formal procedures, the evidence carries very little weight in circumstances where, according to Ms Shanks, Ms Wilson did not proffer an explanation for her attitude. It would have been expected that this would have been a very natural thing for her to do. The evidence is, however, of some weight indicating why Ms Shanks acted as she did.

Ms Wilson

16. There was also a handwritten letter purportedly from the person in need of protection, Ms Wilson, dated 28 July 2021, in which the author of the letter expressed a willingness to have contact with the appellant and expressly stated “I have no reason to fear Ian as he doesn’t (sic) me” and stated that the then prevailing bail conditions were a “hindrance to our relationship”.

17. The appellant’s reliance upon evidence purporting to come from Ms Wilson raises a point about the onus of proof. Had the matter run to hearing in the Local Court, Ms Wilson would have been a crown witness. Yet the Crown did not call testimonial evidence from her in the sentencing hearing. I do not accept that any inference adverse to the Crown would flow from its not adducing evidence from her in the sentencing hearing, having regard to the general closeness of her relationship with the appellant.

18. I accept that in a sentencing hearing, no less than a contested trial, an inference adverse to an offender should not be drawn from the offender’s not calling a material witness. However, the appellant wishes to prove, in mitigation, that Ms Wilson was unaffected by the effect of the influence, the offer of money, which was an element of the first offence. More specifically, he was trying to prove that the offer of money was not a material consideration to her purported reticence to attend Court.

19. This is not a case where an onus was on the Crown, to prove beyond reasonable doubt the non-existence of a fact (that she did not intend to attend court and was unaffected by the appellant’s offer of money). Without direct evidence from Ms Wilson as to what her intentions were, in attending court, or what influenced her intentions, the position regarding her state of mind in these respects was unknown.

20. Finally, the timing of the letter does not assist the appellant, even if I accept its authenticity. It was dated 28 July 2021. The three offences relevant to Ms Wilson occurred in the period from 17 September 2019 to 6 February 2021. The Apprehended Violence Order had expired by then (i.e. on 25 June 2021). There is no evidence to suggest that any new order was sought. Doubtless it is possible that Ms Wilson’s attitude towards the appellant may have changed after the protective order which was in place had expired, but that does not lessen the gravity of the offending which had occurred whilst the order was in place.

Assessment of the appellant’s explanation

21. I do not find the appellant’s account in mitigation to be persuasive. In this I am partly influenced by the appellant’s past record, which included offences which, explicitly or implicitly, brought into question his honesty and my findings responsive to explanations he has given about other offences.

22. Although it is quite possible that Ms Wilson may have been reticent, about coming to Court, that is not uncommon to victims of domestic violence. It was notable from Ms Shanks’ account that it was the appellant – not Ms Wilson – who had explained to Ms Shanks why Ms Shanks was reluctant to attend. This fact suggests that, at the very least, and contrary to the impression created by the account of facts in the appellant’s affidavit, the appellant had been privy to hearing of the Ms Wilson’s attitude directly. Armed with that awareness, he used Ms Shanks as an intermediary as part of that process to convey, indirectly to Ms Wilson, an inducement which was intended to sap her resolve in giving evidence against him.

Submissions

23. The offender’s legal representative submitted that the objective gravity was at the low end of the range. Reference was made to the fact that the conduct did not have any ultimate effect: Ms Wilson still attended Court and, in the events that occurred, the appellant succeeded in defeating at least one of the charges.

24. I agree with the Crown’s submission that the appellant’s conduct was designed to sway Ms Wilson. I accept the appellant’s submission which emphasised that his conduct did not have the desired effect.

25. Indeed, having regard to the offender’s plea, the purported evidence effectively traverses the appellant’s plea, or at least goes very close to doing so. It is not uncommon, in domestic offences, for the ‘victims’ to feel apprehensive about coming to Court. Putting the matter at its highest for the appellant, his offer was designed to appeal to her in a way that might influence her to back out.

26. I accept that the inducement was not threatening. But that is the nature of a bribe – an inducement; not a threat.

27. I would assess the conduct as falling slightly below the mid end of the range of offending.

Seq H312802295/1 (29 December 2019)

28. This offence partly related to the first offence. The AVO contained standard conditions. This included a restriction or prohibition upon the appellant going within 200 metres of any place where Ms Wilson lived.

29. At 8:35am on 29 December 2019, Ms Wilson was sitting on her balcony. Ms Wilson lived at a unit in Umina Beach. She noticed the appellant’s motor vehicle pulling up on the road opposite her unit block. The appellant got out of his car and walked towards her block. Ms Wilson yelled out to him, warning him that she would call the police and took a photo of him on her mobile phone. Undeterred, the appellant walked into the unit block and up the stairs to her unit. He knocked on the front door of Ms Wilson’s unit and demanded he be let in. The victim refused him entry and rang the police.

30. At 9:30am Police attended at her place and Ms Wilson provided this account. At 10am, they attended the appellant’s place at Woy Woy where he was arrested and cautioned. The appellant explained that he had been assisting Ms Wilson with her 13 year old daughter (who had recently given birth to a child). He said he only wanted to attend Ms Wilson’s premises to help with the baby and had done so with Ms Wilson’s consent. He asserted that he had been at Ms Wilson’s the previous evening when Ms Wilson had been intoxicated. He also asserted that he was only intending that morning to see if Ms Wilson was alright and had ‘made it home safe’ from the previous evening.

31. In his recent affidavit, the appellant essentially repeated the account that he told the police, albeit in further detail. He deposed that the night before, Ms Wilson had been sleeping at his place (a different place in Umina Beach). She woke him during the night and he arranged for her to be driven home, by taxi; but before doing so, asked her to call her once she got home safe. She did not do so, so for his peace of mind, he drove past her residence to ensure that she and their young daughter were well. He submits in his affidavit that this was not a planned activity, and that he did not intend to cause hurt to her. He said he understood that he should not have gone to her place and it was an irresponsible thing for him to do.

32. There was no independent evidence, particularly from Ms Wilson, to corroborate these assertions. It is inherently implausible given the circumstance that on the morning he was apprehended, Ms Wilson not only indicated that she did not want to be near him, but plainly warned him about calling the police. Coming as the assertions do from a man with this offender’s past history, including the nature of the offences, which involves not only violence but also dishonesty, in the absence of corroboration, I am unable to accept this account, even on the probabilities. I also reject the implied assertion that he only now understood that his conduct was irresponsible.

Seq H78757842/1 (6 February 2021)

33. A similar AVO restriction was for the appellant not to go within 200 metres of any place where Ms Wilson worked.

34. Whilst the AVO was current, from about 1:30pm on 6 February 2021, Ms Wilson was at her place of work at a BWS drive located at Umina Beach. At 7:15pm that evening, she was at the counter and observed the appellant. The appellant had walked in from the rear side of the drive through and approached her at the counter, asking to speak to her. Ms Wilson told him that he was not meant to be at the location. He asked her for a drink and Ms Wilson told him to go to another shop. This he did, walking to a Woolworths supermarket located along the beach. But at about 7:40pm, he sat on a brick wall in the rear car park of the Bunnings store, within 50m from where the victim was working.

35. As the victim was closing the store a short time later, she observed the appellant standing 5 metres from where she was standing.

36. Later that day, the appellant was arrested. He asserted that he was unaware that Ms Wilson worked at this location before saying that he believed that she finished work at 6:00pm.

37. In his affidavit, the appellant explained that he had been working in Sydney until 5pm, and took the train home to arrive at Woy Woy Station around 7:30pm. He deposed to wanting to purchase beer from the bottle shop when he realised that Ms Wilson was working. He deposed to being surprised and worried about breaching the AVO.

38. In cross-examination, the appellant was asked why, if his encounter with the appellant, because of mis-timing on when Ms Wilson was likely to be at her workplace, he did not leave immediately, the appellant said that he did: he went to the bus-stop.

39. The appellant’s explanation is too co-incidental to be plausible. It is too cute by half. By his own account, he understood that she usually finished at 6:30pm; and he knew where she worked. Particularly during the summer months, I consider it likely that he might have anticipated that there may be circumstances where business hours at a liquor store would be extended, especially on a Saturday night in summer, as this night was. But even if he apprehended that she had actually finished work, there remained a good chance that she might be in the vicinity of the store location, as it was, near the beach. Nor does his explanation account for the facts which indicated that after his initial sighting of Ms Wilson, he positioned himself again to make sure he could be seen by her; before finally getting within 5 metres of her.

33. I consider that overall the appellant was unwilling to accept responsibility for, at least on three occasions, within a short period, positioning himself within eyesight of Ms Wilson. I do not accept his legal representative’s submission that I could infer that he was there because of willingness on Ms Wilson’s part that he be there. That is fanciful in a context where police subsequently arrested him.

General assessment of offences H312802295/1 and H78757842/1

41. The second and third offences are relevantly similar. The Crown submitted, and I accept, that the latter of the two offences was more serious given that he had been arrested in relation to the second offence just over a month before. I agree. Nevertheless, although there was a breach in the case of each of these two offences, and although I infer (contrary to the appellant’s submission) that this instilled enough fear or apprehension in Ms Wilson so as to cause her to report the contravention, there was no physical harm that was threatened or inflicted. I would regard both of those offences as being at the low end of the scale for the offending, with the third offence being more serious than the second.

Seq H82801724/1 (11 September 2021)

42. As of this day, the appellant was disqualified from holding a driver’s license.

43. At 2:50am on 11 September 2021 (a Saturday) police saw a vehicle travelling along Gallipoli Avenue Woy Woy. They saw the vehicle make a right hand turn onto Ocean Bay Road, Woy Woy. This was within 5km of Umina Beach. Police followed the vehicle.

44. The vehicle that police was observing stopped at a petrol station. Police caught up with the vehicle and they observed the driver of the vehicle get out to use the petrol pump. They engaged in conversation with him. The appellant told them his name. Police conducted a search on a computer which revealed that he was disqualified. With that information, the appellant was approached again and was asked to produce a current driver’s license. He admitted that he did not have one.

45. The appellant was subjected to a road side breath test. He had a positive reading of 0.022 after admitting to having consumed a few drinks a couple of hours before.

46. A subsequent check indicated that he had been disqualified for 1 year, since 21 January 2021 and, further that he was subject to a 9 months’ Intensive Correction Order as well as being on strict bail conditions. Those conditions included him not entering into Umina Beach, or being within 5 km of Umina Beach, not committing any further offences whilst on bail, and not to drink alcohol.

47. In his affidavit, the appellant alluded to the lockdown then in place in NSW and, in particular, where he was in Ettalong. He suggested that he had a work commitment or meeting that he needed to attend. He professed that he wanted to help his work out, and particularly his boss.

48. Under cross-examination, the appellant was asked why he did not explain to his boss that he was not allowed to drive, the appellant said he felt he had a responsibility to help out his boss. He was also asked why he could not obtain a taxi. He explained that it was early in the morning and that he needed to move gear.

49. He did not call his ‘boss’ to corroborate his evidence about the requirement that was made of him. Nevertheless, there was (contrary to virtually all of his other explanations) some intrinsic plausibility to his evidence. I have expressed general scepticism about the appellant, however, I accept, just, on the probabilities, his explanation which reduces his culpability, so that this conduct was objectively at the very low end of the range. Nevertheless, given his appalling traffic record, and particularly in view of the subject offence being repeated multiple times, with earlier leniency extended to him, that does not materially assist the appellant when considering the indicative sentence for this particular offence.

Seq H326099496/1 (15 September 2021)

50. The next 3 offences arise out of circumstances occurring on the same date and about the same time.

51. At about 1:05pm on this day, police were patrolling Perth Street, Umina Beach. They noticed a vehicle turning from Hobart Avenue into Perth Street, and cutting a corner in the process. The vehicle was stopped and police spoke to the occupant. It was the appellant. He was asked to produce his driver’s licence. The appellant explained that he did not have one, as he was disqualified.

52. Police ascertained the appellant had been convicted of the offence of driving whilst disqualified on 21 January 2021. Police warned him not to drive again lest he run the risk of being arrested.

Seq H326099496/2 (15 September 2021)

53. At 2:04pm, police were located at Rabaul Avenue, Umina. They observed the same vehicle that the appellant had been driving only about an hour earlier travelling along Rabaul Avenue and turning into McEvoy Avenue.

Seq H326099496/3 (15 September 2021)

54. Police drove after the vehicle which for a period of time drove to evade the police. Specifically, he drove at a range of between 100-120 kph in a 50 kph residential zone. When turning onto Ocean Beach Road, he crossed over a painted traffic island and was, at that point, in the oncoming lanes travelling to the right of a raised concrete pedestrian island. He travelled about 50m in oncoming lanes with traffic approaching him before he made a right turn into Cambridge Street. In doing so, he had remained on the incorrect side of the road, travelling to the right of a raised concrete pedestrian island in Cambridge Avenue. He then travelled at a speed estimated to be no less than 100 kph in a 50 kph residential street.

55. Eventually police caught up with the appellant and he exited his vehicle, explaining that he had panicked.

56. Police checks indicated that two days before, the appellant had been at the Gosford Local Court where he was granted bail. One condition stipulated that he must not occupy the driver’s seat of any vehicle.

Explanation for offending on 15 September 2021

57. In relation to the offences on 15 September 2021, the appellant provided an explanation. This was, initially, in the form of a lengthy typed letter, but it was elaborated in his affidavit.

58. The appellant explained that on 15 September, he heard from his friend and flatmate, Sharon Jones, that a wall had collapsed at his home, impacting upon his dog. He claimed he was desperate to get his dog seen to by a vet. But because of COVID-19 social distancing restrictions under the then lockdown, none could come to his home. He claimed he tried to call taxi and Uber drivers, but that did not help him, since his dog was bleeding. So, out of desperation, he borrowed an unidentified person’s car.

59. The appellant’s account of the circumstances of his dog’s injury that day appeared to be inconsistent with what he told the community corrections officer in material respects. He told her that his dog had been hit by a car, not crushed under a collapsed wall. However, when questioned about this, he said that the reference to his dog being hit by a car was a reference only to an earlier offence unrelated to this proceeding. That appears dubious given that the corrections officer had the police facts relevant to the subject offending, and not other offending.

60. He also told her that he had panicked and took the risk of driving the vehicle. That suggests that the corrections officer had understood from his report that the appellant had driven the vehicle with the dog in the car. Omitted in this report was any reference to prior efforts on his part to ring taxi or Uber drivers.

61. In answer to a question from me, about the ‘collapsed wall’, the appellant said that it was only shelves that had collapsed; not the underlying structure of the wall itself. He said that this had not yet been repaired. Although the inconsistency may appear, in this context minor, there is a difference in conveying to another person that a wall has collapsed and conveying that the shelves of a wall had fallen away. The latter would, objectively appear much more serious. This was another demonstration of where I generally lacked confidence in the credibility of the appellant and the exculpatory accounts he supplied or, indeed, the adequacy of his explanations to police.

62. More significantly, there was no reference in the Police Facts to them seeing any dog (injured or otherwise) in the car when he was pulled over, on any occasion that day; which would plainly have been material. Nor was there any reference in the Police Facts to the appellant explaining to police that the reason he was driving was to attend to the urgent needs of his pet.

63. There was no other documentary evidence to indicate the treatment of the appellant’s dog on that or any other proximate day, such as any invoice or receipt of payment of any vet’s bill. He said that the dog had later been treated. It might have been expected that an honest offender, knowing of the charges against him on 15 September, would naturally summon sources of proof to confirm exculpatory accounts if he could readily so do.

64. Given my view about the appellant’s general lack of credibility and reliability, inconsistencies in his accounts of what occurred on 15 September and the absence of corroboration or independent evidence to support his accounts, I reject his explanations that attempt to lower his culpability.

65. I agree with the Crown that, having regard to the arrest only a short time before, the gravity of the offending for the second driving whilst disqualified offence was more serious than the earlier driving whilst disqualified offence of the same day.

66. I also agree with the Crown that the last of the offences involved seriously dangerous driving involving repeatedly exceeding the speed limit and crossing over to the wrong side of the road. Even if I accepted, which I do not, the appellant’s excuse about his dog, it would not materially mitigate the danger that he put himself, other motorists and potentially nearby pedestrians at risk at what was likely to be a very busy time of the day.

Aggravating circumstances

67. For the offences that occurred on 17 September 2019 and 29 December 2019, these occurred whilst the appellant was subject to an extant order of a term of imprisonment served by Intensive Correction.

68. For the offences that occurred on 17 September 2019, 29 December 2019 and 6 February 2021, they also occurred when the appellant was subject to a conditional release order.

69. For the offending that occurred on 15 September 2021, this occurred whilst the appellant was subject to a different Intensive Correction Order.

70. As the Crown noted, the appellant had been extended leniency in the imposition of earlier penalties, but he had been called up many times.

SUBJECTIVE CIRCUMSTANCES

71. The appellant was aged between 51 and 53 years of age on the dates of the offences.

72. The appellant’s background is derived partly from his typed letter, but also his recent affidavit.

73. The appellant said he had a happy family upbringing. He had been a plant operator for over 30 years.

74. He lives with his housemate, Ms Jones, who he says he cares for. He says he also supports his mother (Carole Fraser) and brother (Andrew Fraser).

Prior criminal history

75. He has an extensive prior criminal history which goes back to him being a juvenile. The history is varied, including many assaults (including some to police), breaking entering and stealing, armed robbery, larceny, obtaining benefits by deception, drug possession and a poor driving record. There were also offences for stalking and intimidation. The poor driving record included driving unregistered vehicles, driving whilst disqualified and driving under the influence. There was no less than 9 offences pertaining to driving without a licence. He has spent periods under incarceration. I note further, that whilst in custody, he has contravened other rules, commonly using abusive, threatening or insulting language.

76. A separate traffic record report details an appalling record.

77. I agree with the Crown that this past record disentitles the appellant to any leniency; especially in connection with the driving offences.

Adverse health conditions

78. The offender asserted that he had been sexually assaulted when inside prison in 2004, and then, whilst at work, violently assaulted with iron bars, he claimed to suffer from a serious brain injury and PTSD.

79. In his letter to the Local Court, the appellant emphasised his troubles throughout 2021. Not only did he fear for his mother’s health, but he was very concerned about COVID-19 affecting him, given his lung problems which had developed over the years as a result of his employment.

80. Within those papers are documents from the Medlife Family Medical Centre identifying a range of conditions, including PTSD, epilepsy, asthma and depression throughout the course of the last decade. To an extent, they provide some independent support to the appellant’s complaints.

81. Reference was made in the sentencing assessment report to the appellant’s reports of clinical depression and his attempt to see a psychologist, which was unsuccessful. He reported to her, the community corrections officer, that he took no medication. It appears that, without adequate explanation, he has done little to address any concerns about mental health issues.

82. Very recently, the appellant was reviewed by a physician, Dr Marcus. In a very brief report, he identified anxiety and depression. Read in context, these conditions appear to relate to his concern about his capacity to care for his mother, a matter which I refer late to in these reasons. Dr Marcus did not suggest that anxiety or depression contributed to the offending.

83. There is nothing, however, to show that any physical or mental condition of the appellant contributed to any of the offending. For example, in relation to the offences committed on 15 September 2021, the appellant explained that he was motivated by an emergency at the time, when initially driving. In relation to the other offences, he defied police instructions or warnings and deliberately drove in a dangerous and reckless way to avoid apprehension. I do not attribute any offending to a connection with his health conditions.

84. Reference was also made in the SAR to the appellant’s alcohol dependency. Indeed this condition was one reason by the Corrections Officer for indicating why he would not be suitable for community service work if a supervised penalty was otherwise appropriate.

Contrition

85. In the sentencing assessment report, on the subject of insight into his offending, nothing was said about the offences relating to Ms Wilson.

86. In his typed letter before the Local Court, he apologised. He said that he felt that he had let his parole officer down. He asserted that he had learnt harsh lessons. There was, again, nothing in the typed letter that referred to the offences concerning Ms Wilson. In his affidavit sworn by the appellant, he generally expressed his deepest regrets and remorse.

87. I do not accept that he is sincerely remorseful for his offences, to the extent that they concern his conduct against Ms Wilson on 29 December 2019 and 6 February 2021 or 17 September 2019. As indicated earlier, I reject his explanations for his conduct which I considered to be fabricated. I do not generally accept as credible his protestations that he was accepting responsibility. To the contrary, in respect to each offence, he was bent upon supplying an array of excuses and spurious justifications, nearly all of which have been rejected.

Discounts on guilty pleas

88. In relation to the offence on 17 September 2019, the appellant only entered a plea on the day he was convicted. I agree with the Crown that a discount of only 10% was appropriate for this offence.

89. For the offending that occurred on 29 December 2019, the offender was entitled to a 20% discount.

90. For the offending that occurred on 6 February 2021, the offender was entitled to a 20% discount.

91. For the offending that occurred on 11 September 2021, the offender was entitled to a 20% discount.

92. For the offending that occurred on 15 September 2021, neither the Crown nor the appellant made any submission as to the appropriate range of discount. I propose to allow a discount of 25% in each of the 3 offences.

Delay

93. In relation to the offences that occurred on 17 September 2019 and 29 December 2019, the appellant’s legal representative submitted that the delay between the presentation of the charge and the hearing is a mitigating factor. Particularly in relation to the former charge, it was said to be left hanging over the appellant’s head for a significant period, and that he ultimately had some success in terms of the result.

94. I do not treat this factor as significantly weighing in the appellant’s favour on any of the offences. In the abstract, conceivably delay in the prosecution of one charge might cause stress and anxiety until resolved, but that is not the position of this appellant, who was subject to multiple charges in relation to multiple episodes of criminality: it is impossible to apportion how much his ‘anxiety’ and stress since the first offence (September 2019) is attributable to delay in the prosecution of that offence, as distinct from all the other offences, not to mention other factors in the appellant’s life since that time. It was not demonstrated how, if at all, he was naturally prejudiced in any other way. Further, although I can conceive that the Pandemic may have been a factor, the appellant did not identify reasons for delay.

Assistance to police

95. The appellant’s legal representative submitted that merely by speaking to and giving an account to Police, at the time of his apprehension, comprising a mix of exculpatory statements and concessions (most often to the obvious), the appellant is entitled to further discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

96. However, the mere fact that a person apprehended voluntarily talks to police about the offence is not a matter which is entitled to any weight in mitigation of sentence (Browning v R [2015] NSWCCA 147 at [123]). In Browning, the offender agreed to participate in an ERISP which was insufficient to make out this mitigating factor. Here the appellant’s “co-operation” did not, save as to the first offence, extend even to that level.

97. I also agree with the Crown that nothing that was said by the appellant in relation to the subject offences yielded anything material, in terms of facilitating further investigation of the offence (or other offences) or leading to the apprehension of other offenders.

98. A further difficulty I have is that in some respects, it is not altogether clear, even on the appellant’s account that he was altogether forthcoming in such statements to the police as he gave. He did not, for example, say anything to police about injury to his dog on the offences that occurred on 15 September 2021. I have indicated my general unwillingness to accept what the appellant said in the absence of corroboration.

99. I reject the appellant’s submission in this regard.

Rehabilitation prospects

100. The Community Corrections Officer from Gosford prepared a report dated 4 January 2021.

101. The officer identified the appellant as being at a Medium/Low risk of reoffending on the LSI-R scale.

102. Although the appellant expressed a willingness to receive intervention, there was little to indicate what proactive measures he has taken to reform himself.

103. The appellant relied upon the written testimonials of other present or former workmates, such as Denise Coates, Darryl and Joan Jones and Enda Dolan, which I have had regard to. They speak of him as being a good worker. With reference to Enda Dolan’s most recent reference (18 February 2022) it is hard to accept that on the basis of his extensive past record, Enda Dolan could form the opinion, about his being of good character unless Edna Dolan was not apprised of it. Further, the reference from Enda Dolan as an employer was not a typically detached reference from an employer, but was notably a reference from someone who was a friend of the appellant. As it is, I place no weight on that particular opinion.

100. In his recent affidavit, the appellant stated that he understood what he had done and assured the Court that “this will never happen again as I have come to an age where I need to learn and I need to be there for my family.” I do not place much weight on this evidence. Not only is the appellant of an age (in his early 50s) where it may have been expected that he had many previous opportunities to learn from earlier offending, but, as is implicit, my rejection of his explanations for his offending recently supplied lead me to seriously doubt whether he has truly learnt from his earlier offending.

101. Whilst there is some support to the appellant from the statements of Edna Dolan, there is very little, other than the expressions of remorse earlier alluded to, and aspirational statements, suggestive of anything than a conclusion that his prospects of rehabilitation are poor.

Hardship to others

106. Among the papers before the Court, I note that the appellant has previously furnished before sentencing judges or magistrates his responsibility as carer for his mother, who has various ailments. In his typed letter, he referred to his mother attending hospitals. In a recent report from a medical centre in Lansvale (1 February 2022), his mother’s current condition and the treatment she is receiving is set out in great detail.

107. In his typed letter, he said that he has lived with a school friend, Sharon Jones, who also had serious episodes relating to her health, specifically a stroke and aneurism.

108. His care and concern for his mother and Ms Jones are elaborated in his affidavit. The appellant also pointed out, as he had apparently had not in the Local Court, additional support that he is providing to his brother Andrew. Andrew Fraser identified that he suffers from anxiety and depression. The gist of Andrew Fraser’s letter was to corroborate the support that the appellant had given to their mother and his struggles, given the appellant’s incarceration. In the appellant’s affidavit, he also noted that his brother had severe bladder and urinal issues.

109. The close support provided by the appellant to his mother and school friend were supported, in combination, by the written testimonials of Ms Coates, Darryl and Joan Jones and Andrew Fraser. Mr and Mrs Jones are the parents of Sharon. Mrs Jones is a Justice of the Peace.

110. I commented, at length, about the consideration of hardship (to third parties) very recently in R v Prospero [2022] NSWDC 26. I referred to the observations in R v Edwards (1996) 90 A Crim R 510, amongst other authorities, that it is common for hardship to occur to family members of an offender, or disabled persons who came to rely upon an offender should an offender be incarcerated as a result of offending. In the earlier case, I also referred to the observation that where incarceration is an almost inevitable consequence of offending, hardship to third parties is usually of little weight (Van Eeden v R [2012] NSWCCA 18 at [40]-[41]). I also referred to an understandable grievance in other offenders of like offences, if offenders receive preferential treatment, in the form of greater leniency, on the ground that they will naturally be extended leniency because of the bare circumstance of care and concern for third parties.

111. I agree with the Crown that the assistance which the appellant renders to the others does not put him into the paradigm case of exceptional circumstances. He was not a full-time carer for any of them; as was apparent by the circumstance of his engaging in employment. Nor has real indication been supplied, more recently, about the difficulties that they have experienced whilst he has been in incarceration. At best, all three benefit from the assistance he has supplied in the past, and commonly hope he may provide it again in the future.

112. The fact is that the appellant’s record indicates a propensity to engage in repeat offending notwithstanding his awareness of the consequences to him if apprehended and the indirect consequences upon his friend, mother and brother. Accordingly the reduction in specific deterrence and enhancement of the weight to be given to the appellant’s rehabilitation prospects which typically arises from recognition of hardship to third parties has little weight in these circumstances.

113. As will be seen, this sentencing consideration is not irrelevant, but more relevant to considering the length of the non-parole period.

Impact upon appellant

114. In his typed letter in the Gosford Local Court, the appellant spoke of his fears of returning to imprisonment. His concerns were two-fold. First, the prospect brought back his fears from the earlier time when he was imprisoned and, according to him, sexually assaulted. Secondly, the incidence of COVID-19 in the custodial setting may affect his health conditions. Thirdly, it pains him to think of his incapacity to attend to the needs of his friend and sick mother.

115. I place limited weight on these matters, which might have had greater force if identified by offenders with a much more impressive record than this offender. The offender’s past history and the aggravated circumstances in which much of the offending occurred indicates a pattern of disobedience, if not contempt, for the law generally insofar as it applies to him; notwithstanding his protestations that he accepts responsibility for his offending.

SYNTHESIS

116. I take into account the maximum penalties for each of the different offences.

117. I also take into account each of the matters in s 3A of the Crime Sentencing Procedure Act. General and specific deterrence and denunciation apply to this appellant. General deterrence is of pronounced weight in connection with the offending of acting with the intent of influencing a witness (R v Burton [2008] NSWCCA 128). Given his background and the nature of the offending, and poor prospects of rehabilitation, protection of the community is also elevated. Further, in the circumstances I have earlier recounted, in the context of some of the earlier offending, concerning the victim, weight also needs to be accorded to making the appellant accountable for the affront to the victim on the separate occasions in which the offending occurred.

118. I am mindful that my task is to consider, afresh, the appropriate sentence. Like the learned Magistrate, however, I am satisfied that the s 5 threshold is crossed.

119. The sentence is to be backdated to take into account the combined period of custody pending both the sentence in the Local Court and the time in custody prior to the hearing of the severity appeal.

120. Whilst I have some reservation in doing so, I am prepared to find special circumstances having regard to the impact of imprisonment on a man with his mental health conditions, the desirability of his supplying future care and assistance to his mother, brother and Ms Jones and more generally, to try to yield some incentive for his rehabilitation.

121. I am mindful of the totality principle. There should be substantial concurrency as between the offences that occurred on 15 September 2021, which might be viewed as a single course of conduct; and also a much more limited concurrency in relation to the offending on 17 September and 29 December 2019 and 6 February 2021 commonly involving the same victim. However, some accumulation needs to be factored into, given that separate and distinct offending occurred on no less than 5 different dates, spanning a period of roughly two years. The aggregate sentence, whilst reflective of the overall criminality, is not intended to be crushing in its effect.

122. The appellant’s legal representative submitted that for each of the indicative sentences, it would be appropriate to find that a Community Corrections Order or Intensive Correction Order would be appropriate in each individual case. However, as an aggregate sentence, he submitted that it would be appropriate to order a term of full-time imprisonment for 1 year, with a non-parole period of 6 months. As will be indicated I disagree with each and every aspect of these particular submissions. As to the indicative sentences, the appellant has breached court orders and legal restrictions too often to admit of any confidence that conditions attached to supervised penalties could be adhered to and the protection of the community militates against such penalties. I reiterate the community correction officer’s reference to a community service work condition as being not appropriate for the appellant. The submissions pay no heed to the aggravated circumstances which attend virtually of the offending. More generally, and whether viewing each of the offences individually, or the appropriate length of an aggregate sentence in totality, the appellant’s submissions about the indicative sentences, if acceded to, would result in manifest inadequacy given the gravity underlying each offence, his appalling prior record and the heightened considerations of general and specific deterrence, protection of the community and accountability that are appropriate.

123. Taking into account the discount on the guilty plea for each offence, as indicated in the individual respects I have identified, the indicative sentences are:

Seq H72150055/5:   7 months’ & 15 days’ imprisonment

Seq H312802295/1   3 months’ imprisonment

Seq H 78757842/1   3 months’ & 15 days imprisonment

Seq H 82801724/1   2 months’ imprisonment

Seq H326099496/1   3 months’ imprisonment

Seq H326099496/2   3 months’ & 15 days’ imprisonment

Seq H326099496/3   6 months’ imprisonment

124. Viewing the offending as a whole, even where I have differed in respect to some of the indicative sentences, I agree with the aggregate sentence imposed by the learned Magistrate. I separately note that the Court is not in a position to disturb the automatic disqualification applicable to his capacity to drive even if the Court considered (which it does not) that it may be otherwise appropriate.

125. The end result is that I agree with the length of both the head sentence and the non-parole period.

126. The only adjustment that needs potentially to be made is the circumstance of the extra period in custody identified by the Crown as a result of the District Court appeal. In all, according to earlier notation supplied to the Court by the Crown, the appellant has spent 4 months and 16 days in custody. [I will however check that period with the Crown and the appellant’s legal representative.] The Crown has now indicated that the appellant has spent 5 months and 8 days in custody, referrable to the subject offending.

127. The sentence should be backdated to take that time served into account.

128. Mr Fraser, please stand.

129. The sentence of the Local Court imposed on you is varied so that your term of 1 year and 6 months is to commence on 16 September 2021 and will expire on 15 March 2023. The non-parole period of 12 months is confirmed and will expire on 15 September 2022, after which you may become eligible for parole.

130. The severity appeal is dismissed.

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Decision last updated: 25 February 2022