R v Geoffrey Shaun Fieldsend; R v Richard Reginald Ohlsen aka Pretty

[2017] NSWDC 402

District Court

New South Wales

Medium Neutral Citation:	R v Geoffrey Shaun Fieldsend; R v Richard Reginald OHLSEN aka PRETTY [2017] NSWDC 402
Hearing dates:	13 October 2017
Date of orders:	20 October 2017
Decision date:	20 October 2017
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	FIELDSEND: Indicative sentences Inmate escape from lawful custody (+ Form 1 matters: Intentionally or recklessly damage & Inmate possess mobile phone/SIM card): 2 years and 6 months Assault law enforcement officer while in the execution of the officer’s duty: 6 months Knowingly be carried in stolen conveyance: 18 months Aggregate sentence Convicted. Special circumstances found to assist rehabilitation and to re-establish the ratio between the NPP and the balance of term. Sentenced to a term of imprisonment for 3 years and 6 months comprising of a NPP of 2 years to commence on 4/1/18 and to expire on 3/1/20 and a balance of term of 1 year and 6 months commencing on 4/1/20 and expiring on 3/7/21. Eligible for release to parole on 3/1/20.  OHLSEN: Indicative sentences Inmate escape/attempt to escape from lawful custody: 2 years – would have been concurrent with sentence imposed re SEQ 1 Assault law officer (not police officer) T2: 6 months Police pursuit – not stop – drive dangerously 2nd offence: 2 years Break and enter dwelling/house commit serious indictable offence (+Form 1 offences SEQ 4 Aid inmate to escape from custody & SEQ 6 Take and drive conveyance): 2 years Aggregate sentence Convicted. Special circumstances found to assist rehabilitation and to re-establish the ratio between the NPP and the balance of term. Sentenced to a term of imprisonment for 5 years, comprising of a NPP of 3 years to commence on 20/7/17 and to expire on 19/7/20, and a balance of term of 2 years to commence on 20/7/20 and expiring on 19/7/22. Eligible for parole on 19/7/20.
Catchwords:	CRIMINAL – Sentence –inmate escape from lawful custody – assault law officer – police pursuit, not stop – drive dangerously - s56 & 57 Crimes (Sentencing Procedure) Act - application to indicative sentence/aggregate sentence – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Summary Offences Act 1988
Category:	Sentence
Parties:	REGINA Geoffrey Shaun FIELDSEND Richard Reginald OHLSEN aka PRETTY
Representation:	Solicitors: CR: Ms J Turner (FIELDSEND) DEF: Mr T Saunders (OHLSEN) DEF: Ms R Mitchell
File Number(s):	2016/00209119, 2016/00209394

Judgment

1. Richard Ohlsen and Geoffrey Fieldsend appear for sentence in relation to a number of offences.

2. Geoffrey Fieldsend appears in relation to an offence of inmate escape custody contrary to s 310D(a) of the Crimes Act, in respect of which the maximum penalty is one of ten years’ imprisonment. There is no relevant standard non-parole period. When being sentenced in respect of that offence he asks the Court to take into account two further offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. Those offences are recklessly damage property contrary to s 195(1)(a) of the Crimes Act and a further offence of inmate possess mobile phone contrary to s 27DA(1) of the Summary Offences Act.

3. The second offence that he is to be sentenced in respect of is assault officer in the execution of duty contrary to s 60A(1) of the Crimes Act. The maximum penalty provided is five years’ imprisonment and there is no relevant standard non-parole period.

4. The third offence is knowingly be carried in a stolen conveyance contrary to s 154A(1)(b) of the Crimes Act. The maximum penalty provided is five years’ imprisonment and again there is no relevant standard non-parole period.

5. Richard Ohlsen is to be sentenced in relation to four offences being:

1. Inmate escape custody contrary to s 310D(a) of the Crimes Act. The maximum penalty is the same as previously stated.

2. Assault officer in the execution of duty contrary to s 60A(1) of the Crimes Act. The maximum penalty is the same as previously stated.

3. Break, enter and steal contrary to s 112(1) of the Crimes Act, in respect of which the maximum penalty is 14 years’ imprisonment and there is no relevant standard non‑parole period.

4. Police pursuit, drive dangerously, second offence contrary to s 51B(1) of the Crimes Act. The maximum penalty provided for that offence is five years’ imprisonment.

6. There is no relevant standard non‑parole in relation to either the break, enter and steal or the police pursuit offences.

7. When being sentenced in respect of the offence of police pursuit, drive dangerously, second offence, he asks the Court to take into account a number of offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act. Those offences are:

• Aid inmate escape lawful custody contrary to s 310C(a) of the Crimes Act;

• Take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act.

8. Geoffrey Fieldsend was committed for sentence on 24 May 2017 from the Broken Hill Local Court, and Richard Ohlsen was committed for sentence on 23 May 2017 from the Broken Hill Local Court.

9. In each case it is accepted that the offender entered a plea of guilty at the earliest opportunity and is entitled to a 25% discount for the utility of the plea alone as referred to in Thomson and Houlton (2000) 49 NSWLR 383.

10. The facts are agreed and are as follows:

1. As at 8 July 2016, the offender Richard Ohlsen (aka Pretty) was in custody at Ivanhoe Corrections Facility serving a variety of periods of imprisonment for unrelated matters.

INMATE POSSESS MOBILE PHONE - FIELDSEND (FORM 1)

2. On the same date, the co-offender Fieldsend was placed into segregation in the Short Term Management Unit (STMU) for being found in possession of a mobile phone whilst incarcerated. The STMU area is fenced off from the general population and is 8 m x 10 m. The STMU perimeter fence is 2.4 metres high and has four lines of barbed wire around the top of the fence.

3. At about 5.45pm on Saturday 9 July 2016, correctional officers Daniel Webster and Erin Gaigler received an intercom message from Fieldsend asking for a bucket of water to assist in flushing the broken toilet in his cell.

4. Officers Webster and Gaigler entered the STMU perimeter fence with a bucket of water through the entry gate on the eastern side. Officer Gaigler locked the padlock on the gate behind her. The officers walked to the main STMU building entry and unlocked the steel door, which remained partially open due to the inability to lock it from the inside.

5. Officer Webster placed the bucket on the floor and unlocked the padlock to Fieldsend’s cell. Fieldsend asked the officers if he could move into the cell next door with another inmate. Fieldsend claimed he was suffering from anxiety and became agitated as he stepped out of his cell. The officers told him to return to his cell numerous times but he refused to comply with their directions.

6. At this time Ohlsen, who was standing outside the STMU perimeter fence called out to Officer Webster and said, “Chief, can I give him (Fieldsend) a chocolate?” whilst waving a block of chocolate in the air. Officer Webster told Ohlsen, “Give us five minutes, mate.” Ohlsen then moved out of sight.

AID INMATE TO ESCAPE CUSTODY - OHLSEN (FORM 1)

ASSAULT OFFICER IN EXECUTION OF DUTY - OHLSEN

7. A short time later Officer Gaigler saw Ohlsen within the STMU perimeter fence, crouching at the bottom of the steps leading to the STMU building. Ohlsen leapt up the stairs quickly and pushed the steel STMU entry door, which struck Officer Gaigler and moved her to the left.

ASSAULT OFFICER IN EXECUTION OF DUTY - FIELDSEND

8. At the same time, Fieldsend struck Officer Gaigler to the chest with his right arm with enough force to make her hit the back wall. Officer Webster activated the duress alarm which caused a loud siren to sound.

INMATE ESCAPE CUSTODY - OHLSEN - FIELDSEND (TAKING INTO ACCOUNT THE FORM 1)

9. The offenders ran out of the STMU building and scaled the STMU perimeter fence. Both offenders then ran through the general population yard, scaled the external perimeter fence and ran off in a westerly direction. The external perimeter fence is 2.4 metres high and has four lines of barbed wire at the top of the fence.

RECKLESSLY DAMAGE PROPERTY - FIELDSEND (FORM 1)

10. During the escape the barbed wire atop the external perimeter fence collapsed under Fieldsend’s weight. This not only significantly compromised the security of the gaol but also the safety of other inmates and correctional officers.

11. The offenders evaded recapture for the next two days. During that time the offenders agreed to separate in order to locate a getaway car. They agreed to meet back up later on, regardless of whether either person was able to find a car.

BREAK, ENTER AND STEAL - OHLSEN (TAKING INTO ACCOUNT THE FORM 1)

12. At about 8.15am on Monday 11 July 2016, Shire Council Depot employee Marshall Lower locked and secured his caravan before leaving to attend work. At some stage that morning Ohlsen broke into the caravan and stole Lower’s car keys, an iPad, a knife, blankets, clothing, a torch and $150 cash.

TAKE CONVEYANCE WITHOUT CONSENT - OHLSEN (FORM 1)

KNOWINGLY BE CARRIED IN A STOLEN CONVEYANCE - FIELDSEND

13. Ohlsen used the stolen car keys to take Lower’s 2003 Mitsubishi Triton utility AQ 46 QL. Shortly after, Ohlsen found Fieldsend, and they drove away.

POLICE PURSUIT - DRIVE DANGEROUSLY - SECOND OFFENCE -OHLSEN

14. Between 11.52am and 11.56am the same day, the offenders drove past a police four-wheel drive into Yathong Nature Reserve. Police observed Ohlsen driving the stolen utility with Fieldsend occupying the front passenger seat. Police activated their lights and sirens. Ohlsen was travelling at approximately 120 kilometres per hour in a 100 kilometre per hour zone. Ohlsen made no attempt to stop. The pursuit continued for a short time. However, due to a number of factors it was deemed too dangerous to continue and the pursuit was terminated. Polair assisted in trying to locate the offenders but due to the low light and remote terrain they were unable to locate it at the time.

15. On 12 July 2016 police located the stolen utility in Yeoval, New South Wales. Police located the offenders’ prison greens inside the utility. Yeoval, by the most direct route, is approximately 506 kilometres from Ivanhoe.

16. On 4 August 2016, police located and arrested the offenders at an address in Warrawong, New South Wales. The offenders were then conveyed to Lake Illawarra Police Station where they were entered into custody. Warrawong is approximately 402 kilometres from Yeoval.

In relation to the offence of--

TURNER: Your Honour, I’m loath to interrupt your Honour’s judgment. I have just been having some discussions with my friend and we both do think that perhaps it may be that the escape does have to be imposed at the end of the non-parole period for the other offences to be sentenced today. I’ve just had another look through some cases and I do change my opinion in that respect.

HIS HONOUR: Sorry, at the end of the other sentences to be imposed today?

TURNER: That’s correct, yes. I’m looking at a case at the moment, it’s in relation to a murder and a few days after he was imprisoned for the murder on remand, he escaped custody and in judgment of that it’s quite clearly referenced that the escape custody must commence at the end of the expiration of the non-parole period for the murder now both being sentenced at the same time.

HIS HONOUR: But that’s if separate sentences are being imposed. Does it say separate sentences have to be imposed?

TURNER: That’s my understanding of the intent of the legislation, yes, your Honour.

HIS HONOUR: Yes, Ms Mitchell?

MITCHELL: Your Honour, I raised the question with my friend at the bar table. It’s, in my submission, perhaps the effect of s 57(1A) which says: “A sentence of imprisonment to which this section applies must be imposed after any other sentence of imprisonment that is imposed in the same proceedings.”

HIS HONOUR: Yes, but an indicative sentence is not a sentence that’s been imposed, it’s only an indication, and I could find nothing in the legislation which suggests that an aggregate sentence can’t be imposed.

MITCHELL: There is nothing that I can see that specifically prohibits it, I’m just concerned about the rather prescriptive wording of s 57(1A).

HIS HONOUR: Yes, well, as I said, it is somewhat difficult to understand particularly where there are multiple offences and someone has offences to which both sections 56 and 57 apply, that is, escape and assault custodial officer.

TURNER: My understanding of the effect of the legislation, and I stand to be corrected, your Honour, was that your Honour could impose an aggregate sentence in relation to each of the matters with the exception of the escape, and that then a discrete sentence would have to commence for that offence at the expiration of the non-parole period on the aggregate sentence on the other matters. I simply raise the matter since I’ve not seen any--

HIS HONOUR: Yes, well, my view is to the contrary.

TURNER: Yes your Honour.

HIS HONOUR: I can find nothing in the legislation that requires me to take that course and no one has pointed out to me a case which actually says that I have to do that. I intend to pursue the course that I’ve suggested.

SAUNDERS: May it please the Court.

HIS HONOUR: And if I am wrong that can be corrected elsewhere.

TURNER: May it please the Court.

SAUNDERS: Yes, your Honour.

HIS HONOUR: And then the legislation might be clarified, or its effect at least.

TURNER: Yes, your Honour.

HIS HONOUR: I am always willing to make new law.

11. I observe, in relation to the offence of recklessly damage property contained on the Form 1 in respect of Mr Fieldsend, that the Crown bundle, Exhibit 1 in respect of that offender, includes at Tab 6 a number of photographs of the fence. The photographs disclose that several of the strands of wire, that is, the barbed wire across the top of the fence, have been at least stretched and perhaps broken in part, as to one strand. I note that both offenders went over the fence. How it is determined that Mr Fieldsend was responsible for the damage to the fence is beyond me, when both went over the fence, rather than both being in part responsible. The damage itself does not appear to be particularly significant, and the wire is either stretched or broken in part and would be readily replaceable at minimal cost as to materials and/or labour.

12. The Agreed Facts contain the following in relation to that offence: “This not only significantly compromised the security of the gaol but also the safety of other inmates and correctional officers.” I fail to understand that as an agreed assertion: at most there is one wire broken. The main upper wire is still intact, and it could only, in my view, compromise the security of the gaol if other inmates sought to go over the same fence. As to it being a threat to their safety or that of correctional officers, it would of course only be a threat to their safety if either the inmates or the correctional officers endeavoured to go over the fence.

13. In my view, it is a charge that represents charging overkill, however, it is not for me to determine what charges are laid. It is only for me to sentence appropriately in respect of those charges which the prosecution has seen fit to proceed with, and in respect of which pleas of guilty have been either entered or the offender has asked to be taken into account.

14. Any escape from a minimum security facility must be regarded seriously because it inevitably has to lead to the consideration of further investment in securing prisoners in that facility or other like facilities. In addition, it also causes reassessment of prisoners as to whether they are suitable to be housed in such premises, and may result in other prisoners finding themselves in more restricted forms of custody than would be the case in the absence of escapes.

15. In this matter, the escape was clearly premeditated: each of the offenders has claimed that the issue of escaping only arose about 20 minutes before, and effectively after a short conversation where one asked the other whether he wished to escape, and the other agreed. Considering the coordination evidenced by the facts, there must have been some more significant consultation between them in order to establish exactly how they would approach getting the custodial officers into a position where they could each then jointly participate in the offence, assisting each other. It is also unlikely that they embarked on the escape without having discussed how they might further their escape once they had, if they had been able to effect it. It may have been a relatively unsophisticated or run of the mill escape, but it was nonetheless pre-planned and probably to a greater extent than either of the offenders has given evidence of; nonetheless as I have stated, all escapes must be regarded seriously.

16. As to the two assaults, being one in relation to each of the offenders, there is no evidence that either of the Corrective Services officers were injured in any way, they were in effect no more than moved or pushed out of the way, one by the use of a hand and the other by having the door forced into them, causing them to move away or be pushed away. In my view, there is little difference between the direct contact of a hand and the indirect contact via the door, and each of those assaults are of relatively equal seriousness.

17. As assault matters, were they not associated with an escape, they would have been dealt with in the Local Court where the maximum penalty available is a period of imprisonment of two years. It is only because of their association with the escape and subsequent offences, in my view, that they have come before this Court. Corrective Services officers have a right to feel that they will not be assaulted by prisoners. It is a significant matter for individual Corrective officers to lose confidence in their safety within the prison system because they are assaulted by prisoners. Despite that circumstance I regard each of the assault officer in the execution of duty as being offences that fall at the low end of the range of seriousness.

18. As to the break, enter and steal offence in respect of Mr Ohlsen, the dwelling broken into was a caravan with a canvas or material annex. There is no evidence that anything was damaged as a result of the break-in, rather than the premises simply being opened to allow access. Materials removed were a set of car keys, iPad, a knife, blankets, clothing and a torch and $150 cash. There is no statement as to the value of the property that was stolen but it would appear to be unlikely to be individually of any significant value other than the iPad; of course the car keys were to the owners Mitsubishi Triton utility. The vehicle is itself the subject of a separate charge. In respect of that offence of break, enter and steal I would find that it falls towards the lower end of objective seriousness.

19. Perhaps more significantly in relation to Mr Ohlsen is the offence of take conveyance without consent which was contained on the Form 1, although I note that the vehicle was eventually recovered two days later and there is no evidence that it had been damaged.

20. As to police pursuit in respect of Mr Ohlsen and the offence of knowingly be carried in a stolen conveyance in respect of Mr Fieldsend, the offenders were involved in a continuing joint criminal enterprise: that is, to escape and make good their escape by fleeing and avoiding detection and apprehension. While Mr Ohlsen was driving the vehicle during the pursuit, Mr Fieldsend was accompanying him, and the purpose of the driving was to assist both of them in making good that escape.

21. As to the pursuit itself, the evidence is that between 11.52am and 11.56am they drove past a police vehicle and were travelling at approximately 120 kph in a 100 kph sign posted speed limit zone, that is of course a speed that is higher than permitted, but it might be reasonably said that it is not particularly outrageous. The only evidence as to the timing of the pursuit is that it continued for a short time before police deemed it too dangerous to continue because of a number of unspecified factors. There is no evidence that during the pursuit that there was any particular threat to any other person or vehicle, and as previously referred to, it is evident that there was no damage to the vehicle itself from being used by the offenders when it was finally located. In my view the offences of police pursuit drive dangerously in respect of Mr Ohlsen and the offence of knowingly be carried in stolen conveyance fall towards the lower end of seriousness for such offences.

11. In relation to the offence of inmate possess mobile phone in respect of Mr Fieldsend, contained on the Form 1, I note that that is an offence under the Summary Offences Act and would not be before this Court except for the fact that it was the cause of Mr Fieldsend being placed in the Short Term Management Unit. Mobile phones in the possession of prisoners are of course a serious concern for the prison system because they have to be illegally introduced into the prison and can be used in respect of the commission of offences and indeed even in relation to making arrangements for the introduction of illegal substances or equipment into gaols, or to assist offenders should they manage to escape. In recent times there have been a number of significant criminal offences committed by offenders even while in high security via the use of mobile phones. In one case a mobile phone was used by a prisoner to conduct a significant criminal enterprise in drug distribution in both New South Wales and Victoria, undetected for a significant period of time.

12. I turn to subjective matters.

RICHARD OHLSEN

24. In relation to the subjective matters, before the Court are the offender’s criminal history and a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report, as well as a psycho-social report dated 26 September 2017, authored by Mary Jellam, a social worker, being a Client Assessment and Referral Consultant with Legal Aid New South Wales. In addition, the offender gave evidence on sentence. Subjective matters are sourced from that material.

25. He is now 31 years of age. He identifies as an Indigenous Australian and he is one of three children born to his parents. He has one older sister. The third child of the family died at the age of one month, placing a strain on his parent’s relationship and they separated when the offender was two years of age. He has had regular contact with his father during school holidays and he has formed a good relationship with his mother’s new partner. He described his childhood and adolescent years as being happy and well supported by his mother and step-father.

26. He attended Dubbo and Cobar Public Schools and went on to Cobar High School. He informed Ms Jellam that he was an average student but excelled in mathematics. When he moved into high school, his behaviour apparently deteriorated and he was provided with a teacher’s aide. He fought with other students and would not cooperate and was oppositional towards teachers. He eventually left school in Year 8. His mother then attempted to home school him but that did not work because “I just wouldn’t do the school work”. He left school and became a drover but did not enjoy the work, and he later secured work as a concreter and shed builder. That enabled him to gain a traineeship and develop work skills. After finishing his traineeship, he gained work in the mines, and after he had turned 18 he was allowed to work underground. He commenced driving concrete trucks underground as well as working as part of the service crew. When he was 20 years of age he received on the job training as an underground diamond driller. From the ages of 23 to 27, he worked in a variety of jobs and maintained full time employment, however, by the age of 27, his drug abuse and dependence on “speed” (amphetamine) and “ice” (methylamphetamine) had undermined his ability to maintain full time work.

27. He commenced the use of alcohol about the age of 14 and prohibited drugs, marijuana, at the age of 16. At the age of 17, his alcohol intake had increased and he was using amphetamines intravenously. He stated that he worked hard but partied on weekends. He was apparently at one stage making good money, approximately $2,000 per week, which enabled him to secure his drugs, however, in particular, his behaviour became aggressive and his use of violence increased in line with the heavy use of “speed” and “ice”. He started having trouble, getting into fights and eventually ended up in prison. He claims that while in prison he has detoxed on his own and has remained drug free.

28. In his life he has had one significant relationship at the age of 22, which resulted in the birth of one son. The relationship has continued for approximately ten years, and his partner, Ms Hay, describes him as a caring and supportive partner and “brilliant” father who “basically lost his way when he started using drugs”. She believes that he has a genuine commitment to staying drug free and making changes to his life. To a certain extent, she attributes the use and escalation of drugs to their having been resident in Cobar, where according to her, the use of prohibited drugs is endemic, and that the offender was influenced by his drug-using friends and members of his family. She has indicated that she will continue to stand by him when he is released, and that she anticipates that he will have the full support and help of her extended family; however she noted that she believed he would be at a high risk of relapsing if he returned to Cobar.

29. The offender’s evidence was that since returning to custody he is now resident in a maximum security facility, which is of course the inevitable result of his having escaped from custody, and a consequence that he was well aware would occur before embarking on the escape. He has apparently been working in the prison bakery six days per week, and he has participated in programs related to that work such as Health Safety and Food Handling. Although he has heard of the EQUIPS course, he claims that having enquired about commencing it, he has been told to wait until he had been sentenced in relation to this matter. That would appear to indicate that he had made no effort to enrol in it during the term of the sentence that he was previously serving prior to the escape.

30. He last worked full time some three years ago, but he was failing the random work drug tests, and was eventually locked up. As to the family exposure to drug use, he states that his father was a drug user, which was confirmed by his mother, and that from a young age it was easy for him to get drugs from his father, and that his father was in fact responsible for giving him his first intravenous shot when he was approximately 17. His father has apparently also served a period of time in custody: when the offender was approximately 27 or 26, his father was gaoled for a period of three years as a result of drug offences.

31. As to taking responsibility for himself and his offending behaviour, he informed Ms Jellam “I’ve got to wear what I did, it’s my fault, my choice, and I can’t excuse what I did”. In his evidence on sentence, he said “No‑one forced me to do it, so I can’t blame anyone for drugs and I can’t blame my father for where I am today”. His desire to do rehabilitation is perhaps equivocal, as I have noticed he does not appear to have endeavoured to participate in any drug rehabilitation course prior to the escape, and he stated in his evidence that he would only participate in rehabilitation “if I have to when released”.

32. In cross-examination, he conceded that he knew that he would end up in a more restricted classification if he escaped, and claimed that “Geoff asked me if I wanted to go, and I said yes” some twenty minutes before the escape. He otherwise claimed that he had been told by the co-offender that the co‑offender was fearful of being moved to Wellington Correctional Centre, anticipating that he would be hurt there. Accordingly, he appeared to be inferring that part of his reason for escaping was to help the co‑offender avoid going to Wellington, which was anticipated as being the result of Mr Fieldsend having been detected in possession of a mobile phone. He claimed that while at liberty it did occur to him to turn himself in, but he didn’t because he thought that he would be bashed by prison officers, an assertion which I do not accept

33. As to his criminal history, he managed to get through his juvenile years without blemish. His offending commenced in approximately 2010, when he was approximately 24 years of age. From that age, he has had a number of significant criminal offences.

34. In 2010, assault occasioning actual bodily harm was his first offence. In 2012 supplying prohibited drug, contravene prohibition/restriction in an AVO and an aggravated break and enter and commit serious indictable offence (use violence); although he received bonds and fines he was eventually called-up in relation to the aggravated break and enter, having received a 22 month suspended sentence pursuant to s 12. He was called-up in April of 2016 and the 22 months was imposed with a non-parole period of 15 months. He was also called‑up in relation to the offence of contravene prohibition/restriction in an AVO, and received a fixed term of six months concurrent with the previously-referred to sentence. There were other offences in 2006 of behave in an offensive manner in or near a public place/school, unlicensed driver/rider and mid-range PCA. In 2008, destroy or damage property, behave in an offensive manner, offensive conduct while upon non‑proscribed enclosed lands, excluded person fail to leave premises when required. In 2009, negligent driving not occasioning death. In 2013, drive on road while licence suspended, break and enter house, destroy property and a further similar offence and an offence of common assault. His initial offending occurred in Cobar, and then in Orange and Dubbo. Thereafter the majority of his offences occurred in Cobar. In 2013, there were numerous offences for possessing prohibited drugs and cultivate prohibited plant. In 2014, possess ammunition without holding a licence, permit or authority, destroy or damage property, and then in 2016, he was dealt with at the Cobar Local Court for a very significant raft of offences, being 14 in total, all having been committed between 24 October 2015 and 12 November 2015, as well as a further raft of offences dealt with at the same time, occurring between 12 November 2015 and 24 November 2015.

35. The first raft of offences were 14 in total, the second raft were ten. They included, significantly in relation to this matter, in the first raft, two separate offences of police pursuit/not stop. They also included custody of a knife in a public place, possess ammunition, dishonesty obtain financial advantage, take and drive conveyance, assault officer in the execution of duty, use intimidation/violence to unlawfully influence person and a number of not particularly relevant driving offences.

36. The second raft of offences dealt with on that occasion included a number that are relevant to the offending here, that is, assault person with intent to resist/prevent apprehension, steal motor vehicle and a third offence of police pursuit/not stop/drive dangerously, and drive recklessly/furiously or speed manner dangerous. Otherwise, there are further offences of destroying or damaging property, possessing ammunition and larceny. I have not referred to some traffic matters.

37. It is evident that once having embarked on a life of criminal offending, his offending has escalated over time to more serious offences. In 2015, there is an offence of break, enter house, steal less than $60,000 in value and a further offence of the same nature. He received a term of imprisonment of two years with a non-parole period of 15 months with the sentence commencing on 24 March 2016 in respect of the second of those break and enters, and a sentence of 15 months imprisonment commencing on 24 December 2015 in respect of the first one, being a fixed term with which the second sentence was partly concurrent. He had been in custody from 27 November 2015 to the time of his escape on 9 July 2016. As a result of his return to custody, he continued serving the non-parole period for unrelated matters until 19 July 2017. He has, with the exception of the period while an escapee, been in custody since 27 November 2015.

SUBJECTIVE MATTERS – GEOFFREY FIELDSEND

38. Available to the Court in respect of subjective matters is the offender’s criminal history, a Corrective Services Conviction, Sentence and Appeals Report and a report from Dr Furst, psychiatrist, dated 28 March 2016. I note in respect of that report that it was not prepared for the purposes of these proceedings but for the purpose of earlier proceedings in respect of which the offender received a period of imprisonment. It nonetheless has some relevant material contained in it. In addition to that material, the offender gave evidence on sentence.

39. He is now 32 years of age. He is of indigenous heritage. I note that he had spent approximately 11 years of the past 15 years either in custody as an adult or juvenile, as at the time of Dr Furst’s report. He has of course been in custody for a further period.

40. He lived in Bourke until he was five years old, and then moved to Dubbo with his mother. His mother and her partner attended court in order to support him in the sentence proceedings. He has three brothers, two being older and one younger. Two of his brothers have also spent periods of time in custody as a result of offending. He was raised by his mother and father in Bourke. His father had drinking problems and was a shearer. It is said that he would come home drunk and be violent towards the offender’s mother, which the offender witnessed. In addition, from time to time, he abused the offender and his brothers. By way of example, the offender said that if he played with matches, his father would burn him with an iron, and that his father also forced the brothers to fight each other from time to time. As a result, the offender’s mother left the home, taking the offender with her to Dubbo.

41. He had attended primary school in Dubbo, Wagga Wagga and Taree and then at St George College as a boarder at Campbelltown. He did not really fit in; he had few friends and he was homesick. He was frequently in trouble for fighting at school and was ultimately expelled from St George College for drug possession. He was oppositional to teachers. He saw a counsellor in relation to anger management when he was in juvenile detention in Dubbo at the age of 17 years.

42. Doctor Furst found no evidence of any major mental illness, and the offender has never been admitted to a psychiatric/inpatient unit, or under the care of community mental health services. He has apparently, however, had symptoms of anxiety and depression from the age of 18 years; he has previously been treated with the antidepressant medication Zoloft, but after three weeks, he ceased using it.

43. His anxiety symptoms apparently began in 2012 when he was then in custody, and were associated with nausea and panic attacks. He was eventually prescribed an antidepressant, Lexapro, by a psychiatrist at the Wellington Correctional Centre on 15 March 2016.

44. He had some use of alcohol in his teens, but his main drug abuse was in respect of cannabis, which he smoked regularly from the age of ten or 11 until he was 16 years of age. His stepfather apparently introduced him to cannabis. He commenced using amphetamines and “ice” at the age of approximately 15, and had an ongoing habit until he was some 21 years of age, when he was then arrested in 2006 for a series of violent offences. At that time, he had been smoking about 1 gram of amphetamine or half a gram of ice at a time on a daily basis. He has also used on occasion ecstasy (MDMA) from the age of 19 years.

45. He has never been admitted to a rehabilitation centre or a detoxification unit. However, at the John Morony Correctional Centre, he completed the intensive drug and alcohol treatment program over a period of 12 months in 2013.

46. He has no significant medical problems.

47. He has had a number of relationships which have resulted in the birth of three children to three different mothers, the children being aged three, 11 and 14. He has had some ongoing contact with the 14 year old and the mother, but little contact with the 11 or the three year old. I note that Dr Furst’s report refers to him as having domestic violence issues with drug abuse complicating the relationship in respect of one of those women, which is said to have culminated in a number of offences in 2006.

48. At the time of consulting Dr Furst, he claimed that he had been free of any drug use while in custody for a period of 18 months. In his evidence, he said that he had previously worked as a shearer, and at feeding stock, and that he would, when released, wish to return to such occupations.

49. He also conceded that he understood that his possession of a mobile phone, if detected, would result in him being transferred to some form of more restrictive custody as one of the possibilities, and that he anticipated that any failed escape would also result in more restrictive terms of custody.

50. As to why he escaped, he said that he understood when detected with the mobile phone that he would only get an internal disciplinary charge, but was later told that he would lose his lower C2 classification, and as a result would be moved to Wellington Correctional Centre, where he did not want to go because he was scared of someone, although he accepted that he could have raised this with the prison authorities. He claimed that he did not do so because he would be regarded as “dog” if he raised such a fear. Hence escaping fitted the category of being “anything better than going to Wellington”. He claimed to have regretted the decision the day after going over the fence but was too scared to return because of the possible consequences, again claiming that he had anticipated that he would not be treated fairly by the prison officers.

51. I did not detect in Mr Fieldsend’s evidence any significant evidence of remorse or contrition. It appears to have been a choice that he made, being fully aware of the potential consequences.

52. The offender has a very substantial criminal history commencing as a juvenile, and I will simply try to summarise it to some extent by saying that as a juvenile, he was dealt with for a variety of offences of violence, including some related to domestic matters; driving vehicles recklessly; larceny; carried in a conveyance on several separate occasions; take and drive conveyance without consent; breaking and entering and driving while disqualified, and in 2003 assault officer in the execution of duty and resist officer in the execution of duty, and a further offence of take and drive conveyance without the consent of the owner, and there are further offences of common assault as a juvenile.

53. As an adult, his offending has continued in much the same vein as it commenced as a juvenile, but also includes offences of supply a prohibited drug and supplying prohibited drugs on an ongoing basis, and he has received terms of imprisonment for offences committed in 2006, in particular of being armed with intent to commit an indictable offence; contravene Apprehended Violence Order; stalk/intimidate, and two significant sentences in relation to aggravated assault with intent to take/drive motor vehicle armed with a weapon, resulting in a term of imprisonment of four years and six months commencing on 20 December 2010, and an offence of destroy/damage property in respect of which he received a term of imprisonment of five years and three months with a non-parole period of three years and six months commencing on 20 December 2011, that is, one year after the last imposed sentence. However, he appealed those sentences and the aggravated assault take/drive was reduced to a sentence of four years and six months with a non-parole period of four years. The sentence for destroy or damage property was also quashed, in lieu he was sentenced to five years and three months with a non-parole period of two years and three months. The aggravated assault sentence was to commence on 20 December 2009, and the destroy or damage property sentence was to commence on 20 September 2011.

38. Of note in respect of his custodial history is the significant period of time that he has spent in custody as an adult. From 27 January 2005 he was in custody until being released on parole on 25 July 2005. He only remained at liberty until 20 December 2006, when he returned to custody. He was released on parole on 19 December 2013 but was returned to custody on 3 October 2014 as a result of a Parole Board decision. With the exception of the period represented by the liberty while escaped, he has been in continuous custody from 3 October 2014 to date. As a result of the revoked parole periods, he is not eligible for parole before 3 January 2018.

39. Doctor Furst diagnosed him in 2016 as suffering from a panic disorder, a substance use disorder, in remission while in custody, a gambling disorder and a personality disorder, being anti-social traits. I accept that on the material the offender suffered from an adverse childhood which was hardly likely to result in the offender becoming a law-abiding citizen. As to his prospects of rehabilitation, in 2016 Dr Furst said the following:

“Mr Fieldsend has a lengthy history of emotional disturbance, addiction and gambling problems. He has a lengthy criminal history and an unstable personality; however, he engaged in previous treatment in the form of an IDATP and achieved abstinence from drugs of abuse during his previous sentence and for some months after his release to the community. He also managed to obtain employment. He has the support of his mother, and has expressed concern for the welfare of his children. Those factors mean he has reasonable prospects of being successfully rehabilitated notwithstanding the seriousness of the offences in question before the Court.”

56. That was a prognostication in relation to previous offences as the matters stood at that time. In the light of his extensive criminal history, any prospect of rehabilitation must be very guarded. Doctor Furst also said:

“I note Mr Fieldsend has spent a considerable portion of his life in custody/juvenile detention, and reported that he found his return to the community after such a significant period of time in custody very challenging (between December 2013 and his arrest in 2014). Those factors suggest that he may well be institutionalised to a degree and is at further risk of becoming institutionalised.”

57. I have no difficulty in accepting the proposition, having perused the offender’s criminal history and custodial record that it is probably fair to infer that he has in fact become institutionalised, even though of course on this occasion he was seeking to escape the institution.

58. For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I must take into account such of the aggravating factors outlined in s 21A(2) and mitigating factors as are referred to in subs(3). Any sentence must reflect the seriousness of the offence or offences, as well as the need for both general and specific deterrence, as well as meeting the fundamental purpose of punishment: that is, the protection of society.

59. In relation to each of the offenders, I am of the view that both specific deterrence and general deterrence are important factors to be taken into account. I also take into account the maximum term of imprisonment provided in relation to each of the individual offences, and I will take into account the 25% utilitarian discount previously referred to.

60. It has been submitted by Ms Mitchell, the legal representative for Mr Ohlsen, that the Court should provide a further discount for assistance in respect of Mr Ohlsen in the circumstances that after they had been apprehended each of the offenders was charged with the offence of take conveyance without consent, and that Mr Ohlsen subsequently informed police that he was the individual offender responsible for taking Mr Lower’s Mitsubishi Trident utility, and that as a result the prosecution did not continue with the similar charge in respect of the co-offender, Fieldsend.

61. I accept that that may have assisted in resolving an issue in relation to these matters, and particularly assisted the co-offender as it resulted in the termination of that charge in respect of him. I am, however, not of the view that that assistance was of such significance as should be provided with the 5% discount, as submitted by Ms Mitchell. While I will take it into account, I do not propose to provide a quantified discount because of my view that it was of limited assistance to the prosecution, although it was no doubt of great assistance to Mr Fieldsend.

62. I am satisfied, pursuant to s 5 of the Crimes (Sentencing Procedure) Act that there is no penalty other than imprisonment that is appropriate. No submission to the contrary has been made on behalf of either of the offenders.

63. The task of sentencing in relation to these matters is complicated by the effects of sections 56 and 57 of the Crimes (Sentencing Procedure) Act 1999.

56   Sentences for offences involving assault by convicted inmate

(1)    This section applies to:

(a)   a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or

(b)   a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control.

(2)    In the absence of a direction under this section, a sentence of imprisonment imposed on an offender:

(a)   who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or

(b)   in respect of whom another sentence of imprisonment has been imposed in the same proceedings,

is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.

64. Subsection (3) provides a discretion:

(3)    The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.

Subsection (3A) is that:

(3A)    Such a direction may not be given in relation to:

(a)   an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or

(b)   an offence involving an assault, or other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control,

unless the court is of the opinion that there are special circumstances justifying such a direction.

65. So, in short, where an offender is being sentenced for an offence involving assault while a convicted inmate at a correctional centre relating to a correctional officer, there is no discretion unless there are special circumstances. The legislation does not define “special circumstances”.

66. The matter is further complicated by s 57, which provides in respect of sentences for offences involving escape by inmates:

“(1) This section applies to a sentence of imprisonment imposed on an offender in relation to an offence involving an escape from lawful custody committed by the offender while an inmate of a correctional centre (whether or not the escape was from a correctional centre).

(1A) A sentence of imprisonment to which this section applies must be imposed after any other sentence of imprisonment that is imposed in the same proceedings.

(2) A sentence of imprisonment to which this section applies imposed on an offender:

(a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or

(b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings,

is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.

(3) In this section, a reference to a sentence of imprisonment is taken to be a reference to:

(a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or

(b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set.”

67. What I have just quoted in relation to a reference to a sentence of imprisonment in subsection (3) is similarly contained in relation to s 56 at subsection (5).

68. I have had some difficulty in understanding the complications in imposing sentences in the circumstances of this matter, which includes offences relevant for each offender to both sections 56 and 57.

69. I have given careful consideration to the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. I confess to some uncertainty but on my understanding of the legislation I am not prevented from proceeding by way of imposing an aggregate sentence as provided by s 53A, providing I comply with the requirements of that section.

Mr Ohlsen, would you please stand.

70. You are convicted in relation to each of the offences of, in short, inmate escape, assault officer, break enter and steal, police pursuit, drive dangerously.

71. I propose to indicate the indicative sentence in relation to each of those matters. In relation to the offence of inmate escape the indicative sentence is two years’ imprisonment. In relation to the offence of assault officer the indicative sentence is six months’ imprisonment. In relation to the offence of break enter and steal, taking into account the additional matters contained on the Form 1, the indicative sentence is two years. In relation to the offence of police pursuit, drive dangerously, the indicative sentence is two years.

72. I note that had I imposed separate sentences. I would have found special circumstances in relation to the assault officer offence of six months and made it entirely concurrent with the sentence for the offence of inmate escape. In my view, the sentence for the inmate escape offence and the matters to be taken into account in relation to that offence adequately take account of the offence of assault officer.

73. The aggregate sentence is as follows: a non‑parole period of three years to commence from 20 July 2017, being the day after the expiry of your non‑parole period for the unrelated matters. The non‑parole period will expire on 19 July 2020. The balance of term is two years, giving a total sentence of five years with a three year non‑parole period. The total sentence will expire on 19 July 2022.

74. That means that you will now be first eligible for parole on 19 July 2020. Whether you are released on that date or not will depend on how you perform while in custody because it is the prison authorities or the Parole Board who will make the determination as to the time at which you will be released. But you will certainly remain in custody until at least 19 July 2020.

75. Thank you, take a seat.

76. I have found special circumstances to the extent of reducing the non‑parole period to provide for a slightly longer period of parole than would otherwise be the case if I applied the statutory relationship to the term of the sentence of five years. I note that I understand that because of the offender’s existing period of custody the total term in custody before being eligible for parole is far in excess of the statutory relationship of seventy-five per cent to twenty-five per cent, but the only way to have accorded a more significant parole period to the offender and re-establish such a relationship would not adequately reflect the offending conduct in relation to these matters.

Mr Fieldsend, would you please stand.

77. Again I will proceed by way of an indicative sentence. In relation to the offence of inmate escape and taking into account the matters contained on the Form 1, the indicative sentence is two and a half years imprisonment. In relation to the offence of assault officer, again, the indicative sentence is six months. In relation to the offence of being carried in a stolen conveyance the indicative sentence is 18 months.

78. The aggregate sentence is a non-parole period of two years, and that will commence on 4 January 2018, being the day after the completion of your custody for unrelated matters. The two years commencing on 4 January 2018 will accordingly mean that you are first eligible for parole on 3 January 2020. The balance of sentence will be one year and six months, giving a total term of sentence of three years and six months. The term of imprisonment will expire on 3 July 2021. Again, as I have said to Mr Ohlsen, you will not necessarily be released on parole on 3 January 2020; that will depend on how you perform while in custody, and of course I have no doubt that you each understand that if, when released on parole at whatever time that is, if you commit further offences while on parole you will no doubt be returned to custody.

79. I have made some adjustment to the non-parole period from the statutory relationship in order to provide at least 18 months of supervision to assist your rehabilitation, as I have similarly done in respect of your co-offender. Again, I note in your case the very extensive period of custody as a result of other matters which flows up to the period that I have just ordered. It is, however, considering sections 56 and 57, impossible in any way to re-establish a statutory relationship and give effect to the need for an appropriate sentence in relation to these matters.

Now, apart from the fact that you all think that I am wrong, is there anything else?

TURNER: There’s nothing further, your Honour.

MITCHELL: Nothing, thank you, your Honour.

Decision last updated: 27 February 2018