R v French

[2020] NSWDC 767

District Court

New South Wales

Medium Neutral Citation:

R v French [2020] NSWDC 767

Hearing dates:

11 December 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [25 - 26]

Catchwords:

CRIME — Violent offences — Stalking or intimidation

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Property offences — Destroying or damaging property

ANIMALS — Animal cruelty — Causing unnecessary pain and cruelly ill-treating

CRIME — Violent offences — Common assault

CRIME — Violent offences — Detain for advantage

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Muldrock v The Queen [2011] HCA 39

Brighton v Will [2020] NSWSC 435

RO v R [2013] NSWCCA 162

R v Tuala [2015] NSWCCA 8

R v Millwood [2012] NSWCCA 2

DPP v De La Rosa (2010) 79 NSWLR 1

R v Engert (1995) 84 A Crim R 67

R v Holder [1983] 3 NSWLR 245

Cahyadi v R [2007] NSWCCA 1

R v MA [2004] NSWCCA 92

Category:

Sentence

Parties:

Regina (Crown)
French (Offender)

Representation:

Stephenson Solicitor for the Direction of Public Prosecutions
Cochrane Counsel for the Offender

File Number(s):

2019/00372483

Publication restriction:

Unrestricted

Judgment

1. The offender, Shaun French appears for sentence on five charges. In respect of one of those charges there are two further matters to take into account by way of the form 1 procedure. Another one of the 5 charges is to be dealt with pursuant to section 166 of the Criminal Procedure Act as a summary matter.

2. The offender was born on 9 September 1986 so that he is now 34 years of age. The offending occurred in the months of October and November 2019 when he was 33 years of age.

3. The offender was arrested on 26 November 2019 and has been in custody since that date. It is agreed that the whole of that time has been in respect of the offences now being sentenced. As at the date of these orders, 17 December 2020 that is a period of 12 months and 22 days.

Charges, maximum sentences, SNPP

4. The charges are as follows:

4.1. That on 6 October 2019 committed an act of cruelty on an animal and killed that animal, a cat. This offence has a maximum sentence of five years. There is no standard non-parole period.

4.2. That on 19 October 2019 in contravention of section 86 (1) (b) of the Crimes Act took a person referred to hereafter as victim 1, with the intention of obtaining an advantage. The maximum sentence for that offence is 14 years. There is no standard non-parole period.

4.3. That on the evening of 19/20 October 2019 in breach of section 13 (1) of the Crimes (Domestic and Personal Violence) Act intimidated victim 1. The maximum sentence for this offence is five years imprisonment. There is no standard non-parole period.

4.4. That on the evening of 19/20 October 2019 committed a common assault on victim 2. This is the offence that is to be dealt with summarily. The maximum sentence is two years imprisonment and/or a $5500 fine.

4.5. That on 26 November 2019 in contravention of section 112(2) of the Crimes Act, committed the offence of aggravated break and enter and committing a serious indictable offence. The matter of aggravation is knowing that there was a person or persons inside the premises broken into. The serious indictable offence is intimidation. The maximum sentence for this offence is 20 years imprisonment. There is a standard non-parole period of five years. It is in respect of this offence that there are two further offences to take into account being one charge of intimidation and one of maliciously damaging property. Those two offences were carried out not long before the section 112(2) offence.

Form 1 procedure

5. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Standard non-parole period

6. The standard non-parole period is to be considered a guidepost in the same way as the maximum sentence is considered a guidepost. At [29] of Muldrock v The Queen [2011] HCA 39 it was said that Division 1A of Part 4 of the CSPA requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences”. The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.

7. As has been noted elsewhere, the standard non parole period is a guidepost and not a tram track, and the same may be said for the maximum sentence. The matter is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock at [27].

The facts and objective seriousness

8. The Crown bundle was tendered without objection and became exhibit A. It included a statement of agreed facts. Without detracting in any way from the seriousness of these facts, what follows is a summary in respect of each offence, together with an assessment of the objective seriousness of each offence.

9. The offender was in a relationship with victim 1. It was on and off and had lasted for about 12 months up to 20 October 2019. The offender had lived with victim 1 for eight weeks up to that time. He was asked to move out. Victim 1 lived on acreage with her two daughters aged 6 and 8.

Section 530

10. On 5 October victim 1 and the offender were at home and the family cat scratched the lounge and the offender said they needed to do something about the cat. He was intoxicated at that time.

11. The next day shortly after victim 1 had left the premises the offender told his friends he was going to kill the cat. He looked for the cat, found it and put a zip tie around the cats neck and pulled it tight. The cat got away. The offender found the cat grabbed it and it got away again. This happened a second time. The cat was gasping for air. The cat was later found dead.

12. When victim 1 returned home the offender said he had “sorted out the cat problem….. the cat is gone” causing great upset to victim 1.

13. The offender argued that what occurred was no more than was necessary to commit the offence, at least in respect of planning. In my view this offending was more than opportunistic. The offender went looking for the cat; it was not as if the cat did something immediately before the offending to irritate the offender and he acted impulsively. It is gratuitous cruelty. The elements of the offence include to commit a serious act of cruelty, and that the animal is killed or seriously injured. In this case as to the first mentioned element, the act of cruelty was reasonably brief in its execution; just how long the cat suffered is not known. As to the second mentioned element, the result is death, not injury, making the offending in my view more serious.

14. There was some debate based on the animal being a domestic pet compared to some authorities referring to animals that would not normally be considered pets, with the Crown arguing it is a more serious matter if a pet. From the animals point of view this is a point that is of utter indifference. Yet in the context of offending surrounded in circumstances of domestic violence I tend to the view that it does make it a more serious offence. That said, it is certainly not a matter where I would be contemplating a term of imprisonment of 24 months as in the case of Brighton v Will [2020] NSWSC 435. Considering the matter overall I would assess this as being only just below the mid-range of objective seriousness.

Section 86(1)(b)

15. Some two weeks later on 19 October 2020 victim 1 was at a neighbouring family home when at about midnight and affected by drugs and alcohol the offender road a quad bike to the neighbouring home in a rage at victim 1. He had messaged victim 1 to tell her to come home. He entered the house and yelled at the victim that it was time to go home and grabbed her by the back of the neck and dragged and pushed her down the hallway and outside, forced her onto the quad bike and rode away at speed toward victim 1’s house about a kilometre away. This is the take and detain charge. Victim 1 was yelling and screaming and the offender stopped the bike to let victim 1 off the bike. The distance travelled was about 1 km and the event lasted for 1 to 2 minutes. The victim walked back towards where she had come from and the offender left. The admitted advantage was psychological satisfaction of controlling the victim.

16. This is a form of domestic violence and is a demonstration of distorted view of the offender presuming some right to control the life of another. The conduct reflects a total disregard for the rights of another and is dehumanising and degrading. It was violent involving the use of force and also the manner of speeding away placed the victim at additional risk of harm.

17. I reject the categorisation of the circumstances leading up to the offence as put by the offender as being repeated requests for the victim to return. Those requests were nothing other than less offensive attempts to control victim 1. The agreed facts are that he was messaging her “telling her” to come home. There was no request involved. Nor do I accept that the departure of victim 1 from the neighbouring home was with victim 1’s cooperation. It would more accurately be called duress. The agreed facts describe it as the offender pushing victim 1 down the hallway and outside and the offender forced victim 1 on to the quad bike. The agreed facts do go on to say that victim 1 was taken against her will but was compliant to take the offender away from her family. There is thus some support for the offender’s submission but I prefer an interpretation that sees the compliance of victim 1 being under duress.

18. Nor do I consider it fairly represents the situation to simply suggest that the offender “voluntarily” allowed victim 1 to get off the bike. The so called voluntary act occurred after the extreme persuasion of the screaming.

19. I would have no hesitation in categorising this in the midrange of objective seriousness but for the fact that the period of detention is estimated only to have lasted for 1 to 2 minutes. I would assess it as just below the midrange.

Section 13 (intimidate) and section 61 (common assault, on summary basis)

20. These two offences occurred following the s86 offence. Victim 1 returned to her house with two others. When the offender was aware victim 1 was home he yelled out for her and she locked herself in the toilet. The offender was banging both fists on the door and the victim escaped out the window and hid in the bedroom wardrobe. When the offender was shown that victim 1 had left the bathroom he started punching the wall. One of the two other people present tried to stop this and was struck on the head and fell to the ground unconscious which is the common assault charge. The victim of the assault suffered a sore neck and a bump on the back of her head.

21. The intimidation charge is of causing victim 1 to hide in the toilet and he continued the intimidation by banging on the toilet door.

22. In terms of objective seriousness care needs to be exercised to make sure there is not a doubling up with the preceding events. What can be taken into account is that the offender knew of the earlier event, and knowing that the offender acts as he does. The extent of the fear caused by this is shown by the attempts of victim 1 to evade him. This is not some intimidation from afar; this is someone trying to bash the door down, so in close proximity, and with a real fear created of what may happen next. I assess the intimidation offence as being in the mid range of objective seriousness. I note the offender makes the same assessment, and that the Crown agrees. With respect I think that describing this offending as entirely spontaneous is inconsistent with his earlier behaviour. Rather than being spontaneous it seems to be a renewed attempt to bend victim 1 to his will.

23. Both the offender and the Crown agree that the common assault is “at the lower end”. The offender describes it as an “apparently reckless consequence of Mr French’s loss of control and outburst of violence directed at the toilet door”. In my view the common assault is not quite the minor incident that the offender argues for and with which the Crown apparently agrees. The admission is to assault. It occurs when the person assaulted is trying to stop the offender behaving as he was. It is not some incidental blow. The facts are the offender struck this victim in the head, rendering them unconscious. This in my view, for a common assault, places it into the mid range. I am prepared however to temper that view in light of the agreement of the parties and the reference to the offending occurring as a result of recklessness which may be the basis on the Crown adopting the view that it does. I therefore adopt the assessment of the parties which is that the assault is at the lower end.

The form 1 matters

24. The s112(2) charge occurs on 26 November 2019. That offence was preceded by the carrying out of the two form 1 matters on the previous day, Monday 25 November.

25. On 25 November 2019 victim 1 organised for the offender and his sister, victim 2, to come to her house to celebrate her divorce. She told the offender that it was a friend’s only invitation and she no longer had feelings for him, having told him on 20 October that the relationship was over and he needed to move out which apparently he did. When at the house of victim 1 The offender became angry and was arguing with victim 1 about their breakup and she told him he had to leave. The offender continued to argue with both victims but was driven away by a lift that had arrived.

26. Regrettably the offender was driven back to victim 1’s house, wanting to talk to victim 1 about their relationship. She told him she had no feelings for him and the relationship was over and he became aggressive and approached victim 2’s car punching the rear window and smashing it and then hitting the wing mirror with his crutches causing the plastic cover to break off. He then threw a crutch at the car. This is the malicious damage matter on the form 1. He then walked to a vehicle nearby which was his and punched that windscreen causing it to crack. The offender then left and later sent persistent phone calls and texts to victim 1. This is the stalk/intimidate charge on the form 1.

27. I take these two matters into account in assessing the appropriate sentence for the section 112 offence. I note that the parties have assessed these matters in terms of objectives seriousness as being in the lower end of the range for malicious damage and the lowest end of the range for the section 13 offence which in my view are accurate assessments and I adopt them.

Section 112(2)

28. On that same evening the offender, having left a second time, sent messages that he was coming back to the home of victim 1. Victim 1 locked the house, turned off the lights and moved her vehicle to the back of the property to give the impression she had left. Victim 2 hid in a bush. The offender walked around the house trying to gain entry and forced open the external door to the garage, breaking the door handle and lock and splintering the door. He entered the house and victim 1 was hiding under the blankets of the bed. The offender walked around the house shouting looking for victim 1. He ultimately found her hiding under the sheets and she told him she locked the house to keep him out and that she did not love him. She said the police had been called. The offender said he would go. At the time the offender broke in he knew the victim and her children were inside being the matter of aggravation. The offender’s conduct inside the house in shouting and looking for the victim was in all the circumstances intimidation and the offender knew this would cause fear.

29. This is somewhat of an escalated repeat of the offending founding the section 13 charge. That is it is offending following on from earlier offending. The offence occurs, in a manner similar to the s13 and s61 charges, following earlier acts which of themselves cause fear. It occurs in the home of victim 1. This offence has a 20 year sentence and a 5 year standard non parole period for an offence objectively in the middle of the range of seriousness. The manner of the break is aggressive and violent. The walking around the house and shouting is clearly frightening, as evidenced by victim 1’s attempts at hiding, which follow the earlier attempts to make it look as if no one is home. The matter of aggravation however is knowing people were in the house, including victim 1, and her two children.

30. The competing positions of the parties here were for the offender to assess it as being at the lower end of the scale of objective seriousness and the Crown to assess it as being in the middle of the range.

31. As I understood the submission for the offender, that the children were there is part of the matter of aggravation, but is not an aggravating factor under s21A, and I accept that and proceed on that basis. It assists the offender that when he ultimately locates victim 1 there was no overt act of aggression or violence.

32. I largely accept the submissions for the offender in respect of this charge save that I do not accept what seems to be an implicitly rather benign characterisation of the actual forcing of the entry. There were attempts as the Crown recognised to break through other doors and windows and the ultimate entry resulted in broken door handle and splintered wood. I would assess this as just below the mid range of objective seriousness.

Section 21A(2)

33. The Crown argues that the section 112 offence is aggravated by the use of violence in affecting the break-in. I have already commented upon this in assessing objective seriousness and to consider it again would be to double count it. Also in respect of the s112 offence the Crown argues it occurred in the home. This is true but the nature of the offence is it can be expected quite commonly to be the case and my view is it is not a matter of significant aggravation and in any event is something taken into account in assessing the objective seriousness so that it does not add anything further. The Crown refers to the emotional harm suffered by the victim. There is no doubt the victim was frightened hence the conduct in seeking to hide. I consider this a matter that almost imperceptibly or unconsciously is taken into account in assessing objective seriousness just as in the manner that in assessing a wounding charge regard is had to the severity of the wound. The Crown also refers here to the victim impact statement which the victim read to the Court and a copy of which became exhibit B. The issue here is whether the harm suffered as outlined in the statement can be considered an aggravating factor. The offender’s counsel relied on RO v R [2013] NSWCCA 162 and R v Tuala [2015] NSWCCA 8. The victim impact statement refers to these events as being the main reason for her subsequent hospitalisation. The point of RO was that where the cause of harm is multifactorial and there is no medical evidence to make a assessment of the extent of the harm attributable to the offending then it is not open to make a finding of substantial harm as being an aggravating factor. In my view the victim impact statement here serves a good purpose in demonstrating in real human terms rather than objective terms what may otherwise be assumed and that is just how significant an impact this type of behaviour can have in both the terror that it causes at the time of the offending and the nature of the damage that can continue thereafter. I accept however that the principle from RO is applicable here, and I do not consider it an aggravating feature.

33. The Crown further notes that the offender was on conditional liberty in that he was on bail for domestic violence related offences when he committed the section 112 offence. I take that into account as an aggravating feature.

Subjective case

35. The offender entered his plea at the earliest opportunity and there is no dispute that there should be a 25% discount on sentence in that regard.

36. The criminal history of the offender shows that he first offended in 2014, so at the age of about 28. That first offending was of common assault and destroy property for which he received a 12 month section 9 bond. On 30 May 2015, not long after the bond expired, he again damaged property and was fined $400. On 27 July 2019 he committed a high range PCA offence. Then on 20 October 2019, so in the midst of the offending presently being considered, he committed a s13 Crimes (Domestic & Personal Violence) Act offence, for which he received a 9 month CCO, a sentence imposed on 24 January 2020. On 18 November 2019 he contravened an AVO, and on 24 January 2020 was fined $800. On 24 March 2020 he was fined $110 for possessing a prohibited drug on 26 November 2019, the day of the s112 offence.

37. This record is significant enough to deny the offender the leniency that a good record would allow. It also shows that he did not offend until about 28 years old, and also shows that the second half of 2019 was when, to use the vernacular, his life came off the rails.

38. The offender relied on a report of Dr Sathish Dayalan, a forensic psychologist, dated 25 September 2020. The history taken by Dr Dayalan recorded the following.

38.1. That the offender is 34.

38.2. His parents separated when he was one.

38.3. His mother and stepfather had alcohol problems and he witnessed domestic violence.

38.4. He had little contact with his biological father.

38.5. He stopped school in year 11 explaining he felt stressed. He described feeling anxious and becoming irritable at those times. He described catastrophic thinking and problems with sleep and low-energy and gave a history of panic attacks.

38.6. He said five years ago he was prescribed psychiatric medication but did not tolerate the adverse effects and that two years ago he commenced on antidepressant medication.

38.7. In 2017 the offender learnt that his father had been sexually abusing his stepsister. He resorted to alcohol and commenced using cocaine. A depressed mood is asserted. All this impacted on his marriage which ended 12 months prior to the offences with divorce proceedings.

38.8. The report offers that the marriage breakdown deteriorated the mental state condition and that the offender saw his son less. Debts arose from drug and alcohol use. He had leg pain from a complex fracture. This required an operation. He put on weight and had low self-esteem and had suicidal thoughts and it is said he made a suicide attempt by hanging in July 2019.

38.9. He says he believes he suffered from anxiety and depressive symptoms for about 12 months leading up to the offending but denied psychotic symptoms.

38.10. At about the time of the offences he was drinking up to 18 standard drinks a day and using 3 to 4 g of cocaine per week and was erratic in compliance with psychiatric medication. He used MDMA occasionally.

38.11. Asked to reflect on his behaviour he said he was ashamed of himself and there was no excuse, he didn’t really mean to hurt anyone. He didn’t want to set the example for his son and said he was a dickhead basically. He acknowledged his size would be quite intimidating.

38.12. He asserts some bullying from school and a suspension for fighting. After taking some time off school he returned to complete year 12. He had had significant periods of employment since leaving school ultimately buying a pest control business which he operated on his own for six years

39. Dr Dayalan observed that on interview there was no evidence of disorder in his thought form or of delusional beliefs or auditory hallucinations. The offender accepts he is suffering anxiety symptoms and alcohol use disorder and is willing to engage in treatment and rehabilitation.

40. Based on the available information Dr Dayalan states that the offender would be diagnosed with general anxiety disorder and of alcohol use disorder

41. The key part of the report for the offender’s argument would appear to be on page 7 where it is said that the offender’s description of his mental state at the time of the offences and information from his psychologist “would indicate that he had been suffering from his generalised anxiety disorder with comorbid depressive symptoms and alcohol use disorder. The increased irritability associated with his anxiety disorder and cognitive impairment attributable to heavy and regular use of alcohol alongside cocaine probably contributed to his offending behaviour”.

42. The report does note expressions of remorse which I accept and consistent with the history asserts that he has had a stable employment history. It says he appears to have a good social network though that is not clear to me. It notes he is motivated to seek treatment

43. In addition to the psychologists report the offender relied on:

43.1. Attending 6 sessions on 3 days of Remand Domestic Violence Sessions;

43.2. Attending a total of 14 sessions of Remand Addiction Sessions, over 9 days;

43.3. A letter of Amanda Wilgress, a psychologist, dated 8 August 2019 showing he had sought counselling in February 2019 for stress and an adjustment disorder. This is significant as it shows the offender seeking assistance before the spate of offending later in 2019, supporting a view that he has insight into his condition.

43.4. A second letter of Amanda Wilgress dated 10 December 2020 the point of which is to confirm that in July 2019 the counselling being given extended to suicidal ideation and that the counsellor was told of a suicide attempt at that time.

43.5. A testimonial from his accountant Mr Hockey who also knew him at age 13. He speaks of the offender as exhibiting good character and always acting appropriately in their dealings. He also talks of the damage to the offender’s business caused by his incarceration. He notes that the last time he spoke to the offender, in October, was the first time the offender spoke in a contrite tone.

43.6. A further testimonial was from an employee of Mr Hockey who speaks of the offender’s good character in her dealings with him, and of his community contributions by sponsorships and donations.

43.7. There was also a letter from the offender himself. From that letter I note the following:

43.7.1. An acknowledgement of his wrongdoing, and that he feels shame at his conduct. He expresses remorse;

43.7.2. A personal history consistent with what was told to Dr Dayalan, including that he dealt with his father’s offending against his step sister by drinking, that his marriage broke down, that he stopped his anxiety medication, and began excessively using cocaine. The revelation concerning his father came when he was about to turn 31, so 3 years ago;

43.7.3. His stress at the difficulties this has caused to his relationship with his son;

43.7.4. That he attempted suicide, and later he says had a complete mental breakdown;

43.7.5. The damage that being in custody has caused and will continue to cause his business.

44. Based on this subjective material the offender submits firstly that the facts of prevalent alcohol abuse, and domestic violence, in the offender’s formative years results in there being a lessening of moral culpability, in line with the reasoning of Justice Simpson in R v Millwood [2012] NSWCCA 2 at [69]. I accept that submission in general terms, but the real issue in this case is whether it has any marked impact. The evidence as to facts relied on is the unsworn history of the offender, and it is very light on detail, and is expressed in the most general of terms. As already noted the offender was offence free until the age of 28, suggesting the contributing issues to his offending presently before the Court arose later in life, albeit they have a family connection, and specifically are the issues he experienced at about age 31, rather than in his upbringing. That is, the family issues concerning his step sister and his long occurring anxiety. Furthermore, in the passage relied on from Millwood, Simpson J said the offender’s background was a relevant consideration “affording some (although limited) mitigation”. In my view that aptly describes the present case; some allowance should be made for the offender’s background, but it affords only limited, and in my view not significant, mitigation.

45. More applicable in the present case are the principles laid out in DPP v De La Rosa (2010) 79 NSWLR 1, at the well known passage at [177]. In short, that case is authority for the proposition that where an offender’s state of mental health can be shown to have a causal link to the offending, then the offender’s moral culpability may be reduced. This in turn may mean the offender is a less appropriate vehicle for general deterrence, and may lessen specific deterrence. On the other hand, it may be, in the manner as spoken of in R v Engert (1995) 84 A Crim R 67, the state of being of the offender may call for harsher punishment in order to protect the community.

46. The evidence to support this submission comes from the report of Dr Dayalan, and in particular the third complete paragraph of page 7. The report is based largely on the history given by the offender. The Crown is justified in submitting in effect that the evidence is weak here, but that does not mean it is incapable of acceptance. The Crown is also justified to say that these matters do not necessarily lead to a lesser need for both general and specific deterrence.

47. I am satisfied however from the offender’s history and the other material (eg of Ms Wilgress) that the offender does suffer anxiety, and was a heavy drinker at the time of the offending. That of course, simpliciter, cannot be a matter of mitigation due to s21A(5AA) CSPA. The agreed facts make plain that at the time of all the offending bar the s530 charge the offender was affected by alcohol or alcohol and drugs, and it would seem implicit to have been the case in respect of the s530 matter also. A resistance that I have to accepting this submission is the suggestion that someone with a depressive or anxiety disorder is somehow incapable or so less likely to be able to control their drinking that they should be treated differently to somebody without such a disorder who drinks. The answer is that it is fact dependent and can largely be considered as a question of the extent to which the condition renders more likely a drinking episode. The view I take of this submission is largely in line with my view as to the Millwood submission, but marginally more favourable to the offender.

48. The impact that this has on sentencing considerations is that it renders a lesser need for general deterrence, to some modest if not small degree. I do not accept that there is any lesser role for specific deterrence to play, as the afflictions as made out by the evidence are capable of management; there is reference to medication and the offender has sought counselling. The offender needs to be encouraged not to let those interventions lapse.

49. This perhaps minimalist view of the offender’s state of mental health is supported by his history, already commented upon, namely, no offending till age 28, and the notable apparent increase in substance use since 2017, suggesting he is capable of managing his mental health, albeit there were some crises in his life at that time, and which the sentence will allow for.

50. Overall the offender has a subjective case that calls for some recognition in the sentence. I would not describe it as a strong one, but is is deserving of being given some weight. Not only is there the mental health issue, but the offender has expressed sorrow and remorse and appears to have some insight. The issue of the likelihood of reoffending would seem to be entirely intertwined with the degree to which the offender ceases to abuse substances. Should that be properly controlled then the likelihood of reoffending would be low. The offender would in those circumstances have reasonable prospects, as he has shown himself to be an able businessman and it is to be hoped he returns to that role.

Totality

51. R v Holder [1983] 3 NSWLR 245 calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and that there then be determined what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The current offending occurred in the period 6 October 2019 to 26 November 2020. There are 5 offences (7 including the form 1 matters), occurring on 3 occasions. There is the cat offence on 6 October, the take and detain matter, the intimidation and assault on or about 19 October, and there is then the 2 form 1 matters and the s112 matter on or about 26 November.

52. The disjointed chronology of this offending, on the facts as set out above, make it difficult to consider it as one “episode” of criminality, for example that somehow the sentence for the events of 26 November can properly reflect the criminality of the quite distinct offence of 5 October.

47 In Cahyadi v R[2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

“[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.” (underlining added)

53. With those statements in mind, the totality principle here will be applicable in respect of the three disparate occasions of offending, and it would then be appropriate to make any further overall downward adjustment if necessary in the event the result arrived at is a sentence disproportionate to the overall criminality of all offending.

Special circumstances

54. I accept the submission that special circumstances can be found in this case due to the need for rehabilitation. It is essential for this offender and the protection of the community that he be supervised to assist with his drug and alcohol issues, and his need for counselling. I note also this will be the offender’s first time in custody, and incarceration will be more difficult to endure with the more limited visiting arrangements in place due to Covid 19.

Sentencing considerations

55. It was argued for the offender that perhaps not all of the offending crossed the section 5 threshold, but that it was sensible to proceed by way of an aggregate sentence. The offences that may most likely be argued to not cross the threshold are the common assault and intimidation charges. Yet when the circumstances in which those offences arose are considered, and when sections 4A and 4B CSPA are considered, my view is the intimidation charge does cross the threshold. I am not so convinced in respect of the common assault charge, where the victim was not the domestic partner. In my view that charge can be dealt with by a sentence that is wholly concurrent with the intimidation sentence, particularly given that the parties seem to agree it occurred as a result of recklessness attached to the intimidation conduct.

56. Section 3A CSPA sets out the purposes of sentencing. They are in short:

(1) to ensure the offender is adequately punished;

(2) both general and specific deterrence;

(3) to protect the community;

(4) to promote rehabilitation of the offender;

(5) to make the offender accountable for his actions;

(6) to denounce the conduct;

(7) to recognise the harm done to the victim and community.

57. I have indicated above that in my view the subjective case of the offender does not result in any markedly reduced need for both general and specific deterrence. Both those purposes need to be recognised here. So too is the need to protect the community. The nature of the offending and its prevalence in our society calls for significant denunciation.

58. The result is that I consider the s5 threshold is crossed in respect of all the matters.

Appropriate sentences

59. The offender’s counsel helpfully referred to a number of cases dealing with similar offending. With no disrespect to those submissions I will not set out those matters given how fact dependent the results are, but would acknowledge their assistance.

60. I intend to proceed by way of an aggregate sentence. Taking into account all the above matters and the form 1 matters in relation to the s112 offence, the indicative sentences are as follows, and the indicated sentence is after the discount has been applied:

Section 530:      6 months;

Section 86: 12 months;

Section 13: 9 months;

Section 61: 3 months;

Section 112: 18 months

61. In applying the principle of totality, its impact is on the section 13, 61 and 112 offences more than the s530 and s86 matters. Those latter two matters, which occurred earlier, are quite separate, occurring on 5 October and 19 October. My view is the totality principle does require any reduction in their total, unless their accumulation renders a manifestly unjust result, which in my view it does not. My view is that when the totality principle is applied to the last 3 occurring offences, the total sentence for those matters should be 24 months, and this allows for the foreshadowed wholly concurrent sentence for the s61 offence. The aggregate sentence I arrive at for all the offending is 39 months. Allowing for special circumstances there will be a non parole period of 24 months, to date from the day of arrest of the offender. I consider this to be the “minimum period the offender must spend in gaol, having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and subjective circumstances”, as per R v MA [2004] NSWCCA 92 at para 33.

62. Had I not proceeded by way of an aggregate sentence, the head sentence for the s112 offence would have been 18 months with a non parole period of 12 months. This is at variance to the standard non parole period. The reason for this is because I have assessed the matter as below the middle level of objective seriousness, and because of the offender’s subjective case including the matters founding the finding of special circumstances.

63. I note that there was no argument put for an ICO outcome, and in my view rightly so, and I note further that sentencing option would not have been available given the head sentence stated above.

Orders

64. I make the following orders:

(1) Shaun French, for the 4 indictable offences and for the 1 offence to be dealt with summarily, you are convicted.

(2) I sentence you to a non-parole period of 2 years to commence from 26 November 2019 and expiring on 25 November 2021, with a balance of term of 15 months expiring on 25 February 2023

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Decision last updated: 18 December 2020