R v Grimes

[2020] NSWDC 172

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Grimes [2020] NSWDC 172
Hearing dates:	6 April 2020
Decision date:	06 April 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of three years 9 months with a non parole period of two years.
Catchwords:	SENTENCING – Aggravated break and enter – steal motor vehicle – obtain benefit by deception.   SENTENCING – Relevant factors on sentencing – a strange, confronting and frightening incident in Barrack Heights - early guilty plea – structure of sentence – duress – criminal history – Bugmy factors – never lived normal community life – need for fulltime rehabilitation program – spec circumstances – COVID-19.
Legislation Cited:	Children’s (Criminal Detention) Act 1987 Crimes Act 1900 Crimes (Administration of Sentencing) Act 1999 Crimes (Sentencing Procedure) Act 1999.
Cases Cited:	Brown v R [2020] VSC 60 Bugmy v The Queen (2013) 249 CLR 571 Giang v R [2017] NSWCCA 25 Henry v R (1999) 46 NSWLR 346 Hili v The Queen (2010) 242 CLR 520 Munda v Western Australia (2013) 249 CLR 600 R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Windle [2012] NSWCCA 222 R v Z (2005) 2 AC 467 Ryan v The Queen (2001) 206 CLR 267 Tiknius v R (2011) 221 A Crim R 365
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf
Category:	Sentence
Parties:	Craig Grimes (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr J Hibbard, Trial Advocate, Aboriginal Legal Service NSW/ACT Ltd (for the offender) Ms A Cabrera (for Director of Public Prosecutions)
File Number(s):	2019/00079672

SENTENCE – EX PARTE REVISED

1. The present proceedings were conducted using the virtual court system which was interrupted a number of times because we are still experiencing teething problems primarily relating to NBN connections. To protect the privacy of the victims pseudonyms have been used for their names.

INTRODUCTION

2. Craig Grimes is for sentence today for four matters; aggravated break enter and commit the indictable offence of larceny in circumstance of aggravation, s 112 Crimes Act 1900, steal motor vehicle, s 154AA Crimes Act, and two summary offences of obtaining a benefit by deception, s 192E(1) Crimes Act. A s 112 Crimes Act 1900 offence has a maximum penalty of 20 years imprisonment and a standard non parole period of 5 years. A s 154AA Crimes Act offence has a maximum penalty of 5 years. If dealt with in the LC a s 192E(1) Crimes Act offence a maximum of 2 years imprisonment can be imposed.

3. Grimes guilty pleas were entered in the Local Court. He must have the benefit of a reduction of 25% in the otherwise applicable sentences to reflect the utilitarian value of those pleas, 25D Crimes (Sentencing Procedure) Act 1999. As there are four matters for sentence today and as I intend to impose an aggregate sentence, I will take care that the benefit of those guilty pleas is not eroded by any accumulation. There must be some accumulation; there is no discount for committing multiple offences, but as the crimes form one course of criminal conduct and as the facts in one offence flowed from others, any accumulation need not be great. There is also a need to take into account the Local Court sentences. The principle of totality will be applied. There is also a need to take into account sentences imposed in the Local Court

4. As with every sentencing exercise, I must endeavour to identify all the factors that are relevant to the sentence and discuss their significance. In doing so I have been assisted by the written submissions of Mr Hibbard, solicitor advocate Aboriginal Legal Service, and his oral submissions and the oral submissions of Ms Cabrera who appears today for the Director of Public Prosecutions. I have sought to incorporate those submissions into these remarks and to do proper justice to them. I must make a value judgment as to what is the appropriate sentence given all the factors relevant to the crime and the offender: Hili v The Queen (2010) 242 CLR 520. It is appropriate I start with what occurred to bring Grimes before he court.

Agreed facts

5. On 12 March 2019, there was a strange confrontation in the rear of the home occupied by siblings Steven and Sylvia Button in Barrack Heights. That night a number of friends were staying. In the early hours of the morning the residents were woken by their Alsatian dog “Archie” barking. Torches were seen in the backyard. Mr Button went out and was confronted by a number of men who told him they had chased “Steve Henry” to the yard. Mr Button was told to get on the ground. A demand was made for money and drugs. Ms Button then came out to the back yard and yelled at the men. Mr Button was allowed up so he could put Archie, the dog, away. Mr and Ms Button were told to get on the ground and put their hands behind their heads. They were told “You’re not going anywhere until we find Steve Henry”. The Buttons did not know a Steve Henry.

6. The Buttons were then told to get their visitor, Mr Taylor, to come from the house and get on the ground. Ms Button was allowed to get up to put Archie inside the house. Demands were made of Mr Button and Mr Taylor for drugs and money. One of the men went through Mr Taylor’s wallet. Threats were made to shoot Archie, who was still barking.

7. While Mr Button and Mr Taylor were on the ground Ms Button went into the house with some of the men. She recognised one of them as Craig Grimes. Another had a bandanna over his face. Inside the house this male asked Ms Button for drugs. The demands were repeated as Grimes and this other man were in her bedroom. More demands for drugs were made. Ms Button told them she did not sell drugs.

8. Archie then came into the room. The unidentified male jumped through the window smashing the glass. Grimes said to Ms Button, “If I get bitten by the dog I am going to shoot you in the head.” He then jumped out the now broken window.

9. They joined their comrades who were with Mr Button and Mr Taylor who were still lying on the ground. Mr Button was allowed to put the dog on the chain, which he did. When he was in the house another male asked him for his ID and wallet. Mr Button got his wallet from a bedroom and gave it to this man. Mr Taylor was allowed to leave. He walked home. Two of the men searched a shed in the yard saying they were looking for Steve Henry’s drugs. They found nothing. A motorbike belonging to the son of the owners of the home was taken and ridden away.

10. At this time all the men left with the property they had stolen. This included three watches, some rings, which were not of significant value, a gold pendant and Mr Button’s wallet with his cards and $325 cash.

11. A meat cleaver was left in Mr Button’s bedroom. Also left behind were a pair of binoculars and two torches. Ms Button saw Grimes take a black knife from her kitchen and put it in his rear pocket of his pants. One of the men had held an item that looked like a firearm.

12. The police were called. Soon after Mr Button checked his bank account details and discovered his bankcard had been used at Coles Express to take out $32 worth of goods and MacDonald’s purchase $42.50 worth of goods. Some of what occurred was captured on CCTV; from a neighbouring property and CCTV from Coles Express shows Grimes making the purchase.

13. Later that day police executed a search warrant on his home in Port Kembla. Mr Button’s wallet was found in his room.

14. Grimes was arrested. After seeking telephone advice from the Aboriginal Legal Service, he was interviewed. Almost immediately he broke down and said, “They made me do it”. He told police he was pressured to go along with the others as they believed drugs were at these premises, and as he knew Archie, and could presumably calm the dog. He said he was threatened with a firearm. He was told he, his fiancée and daughter would be hurt if he did not assist.

15. The agreed facts notes that Grimes now acknowledges that despite the threats he could have called the police, and when they came to get him to come with them he could have said “no.” He also acknowledges that he could have left the event, but on two occasions he returned to the group he came with.

16. Paragraph [16] redacted.

Objective seriousness

17. The offence occurred in the early hours of the morning at a residential home. It was obvious people were present. The offender was in company with a group of armed people. He was armed with a knife taken from the home. Both the yard and the home were entered. Three people at the home were verbally assaulted and made to lie on the ground for periods. They were detained during these periods. The offender entered the home. A window was damaged. Serious threats were made. The armed group attended the home intending to steal drugs and money. Only a small amount of money and the motorbike was taken.

18. The circumstance of aggravation relied upon to find the charge for sentence is armed with an offensive weapon, but multiple circumstances of aggravation were present; in company of other persons, depravation of liberty in the knowledge that there was someone in the place: s 105A Crimes Act.

19. It must have been very confronting, frightening and confusing for all three victims. The home was invaded; both they and the community can presume to have suffered considerable disquiet at what occurred. The law understandably places particular importance on treating violence such as this, that occur in people’s homes at night, as offences of considerable seriousness.

20. When proper guidance is taken from the maximum penalty for the break and enter offence of 20 years and content is given to the standard non-parole period, only a full time custodial sentence of some length could properly reflect what was done to each victim.

21. There are no Victim Impact Statements before the Court, but the absence of a Victim Impact Statement does not mitigate: s 30D Crimes (Sentencing Procedure) Act 1999.

Duress

22. Duress implies forcible restraint and compulsion. Duress, if it does not excuse the offending or exculpate the offence, is capable of being a mitigating factor at sentence: s 21A(3)(d) Crimes (Sentencing Procedure) Act.

23. There is authority for the proposition that non-exculpatory duress is relevant to the assessment of objective gravity of an offence, particularly if it is committed because of threats of fear of harm to one’s self rather than financial profit or greed: Giang v R [2017] NSWCCA 25, at [33]; R v Z (2005) 2 AC 467, at [22]. Here duress is a factor relevant to sentence but in the circumstances does not moderate the seriousness of what was done. It does, however, affect the degree of the offender’s subjective or moral culpability in prospects of rehabilitation: Tiknius v R (2011) 221 A Crim R 365, at [41].

24. The Court must approach such claims with a significant degree of circumspection as the claims may be easily made: Tiknius at [45]. Here I am prepared to accept that the commission of the offence was affected to some degree by duress. But the weight to be given to duress on sentence depends on the form and duration of the offender’s criminal conduct, the nature of the threats made and the opportunities made available to the offender to report the matter or desist from assisting: Tiknius at [49].

25. I have heard the evidence of the offender in relation to these matters; which repeats what is set out in his statements to police, and to his psychologist. The facts that threats were made to him and his family I am sure operated upon him. But he also chose to go with these people, he chose to use the drugs that they had offered. He chose to stay at the premises. He took property from the premises and used that property.

26. In the circumstances given here, while duress is a relevant factor, it cannot be given much weight.

27. In any event, regardless of duress, deterrence remains a very relevant sentencing factor. The community have to understand that no matter what threats are made, to go through with a serious crime such as the one that brings Mr Grimes before the Court is not seriously an option.

Assistance

28. Paragraph [28] redacted

29. I am prepared to accept the evidence that the offender nominated his co‑offenders and that he gave an undertaking he would give evidence. But for reasons which are unexplained the police declined to follow the matter up. It appears that there was some CCTV and DNA evidence to support Grimes’ version.

30. In all the circumstances and having considered both the requirements of s 23 of the Crimes (Sentencing Procedure) Act I am prepared to reduce the otherwise appropriate sentences by 5% to take into account that offer of assistance. It seems unlikely that there would be any future assistance.

31. In doing so I note that there is evidence of some additional hardship; by nature of threats, movement of the offender to Special Management Area Protection (SMAP) and that, knowing some of the names mentioned, if they are not in custody there is a real risk that they will be and that the capacity to have someone carry out the threats on their behalf is a real one. Well, could be perceived as a real one by the offender.

Criminal record

32. Grimes first came before the Local Court in 2011. The Children’s Court entry on his record is inadmissible: s 15C of the Children’s (Criminal Detention) Act 1987 and I will disregard it as such.

33. He went to gaol in 2012 when a suspended sentence imposed for break, enter and steal enter was called up. He was in prison again in 2014 and 2015-16. He has been in custody since his arrest on 12 March 2019, but served a five month non‑parole period between May and October 2019 for driving while disqualified and a knife possession offence. He has served seven months, 27 days solely referable to these offences.

34. His criminal history is relevant to determining the proper sentence. His record indicates he cannot get the leniency often given to first offenders. It indicates that this offence is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. It is an aggravating factor on sentence. However, I note that there is nothing on his record of comparable seriousness.

Offender’s background

35. Grimes is now 27. He is an Aboriginal Australian who identifies as Wiradjuri on his father’s side. He grew up in Wollongong. One of 12 children, he lived primarily with his father. His mother has a drug addiction. His father is a heavy drinker, who was reported to become violent after drinking. While his siblings were taken into care, Family and Community Services did not become involved in Grimes’ life until he was seven. By the time he was 12 he was living on his wits, staying at friends’ houses but often on the streets. He reports occasions when he was sexually abused. He was sent to a behavioural school at 16 where he learnt to read and write and passed his year 10 exams. He did not finish Year 11 because of his substance abuse problems. He had however began using cannabis at 12 years old. By the time he was 18 he was using a variety of drugs and gambling heavily. He also came to the notice of police and the courts. He has never attended a rehabilitation program. His evidence today is that he wishes to do so. He will enter into full time rehabilitation if given the opportunity by the State Parole Authority.

36. He has been in a number of relationships and has a young daughter. His current girlfriend, who has put a letter before the Court, encouraged him to see a psychologist; there is a report of Mr Martino before the Court. But it does not appear he persisted or learnt significantly from that earlier therapy.

37. He told me he would like to learn how to be a good father to his daughter. His girlfriend’s mother was able to teach him some good lessons and provided a role model, but sadly she passed away.

38. He reports, and his evidence today is, that at the time of the offence he was “hitting the drugs pretty hard.” He could not cope with the death of his mother‑in‑law, and despite his promises to his partner and to himself that he would be a good father he went back to the one thing he knew, use of drugs and crime. Ms Godbee, the clinical psychologist whose report is before me says that he was forced to use the ice that day. That is his evidence before me. I find that assertion hard to accept.

39. Grimes has seen a psychologist while in custody. He is taking an antidepressant, which he says helps. In her report Ms Godbee concludes that he exhibited some signs of post‑traumatic stress disorder. She says despite there being few protective factors such as prosocial friends he is only now becoming aware of the cycle of drugs, crime and gaol that he finds himself placed in.

40. Ms Godbee recommends intensive drug and alcohol programs which could improve these insights. She says Grimes needs long term support in the community on release and offender specific treatment to challenge what she described as a distorted attitude to his offending. He needs help developing skills for prosocial living such as the EQUIPS program.

41. In his evidence today, Grimes spoke of his concerns for his partner and his desire to be a good father to his daughter. He says that the only thing he knew was drugs and crime and that he was trying until confronted by his offenders and when he was vulnerable having taken up the use of drugs following the death of his mother‑in‑law. In his letter to me, and in his evidence, he spoke of his remorse. He was however much more focused on his regret; how he had put himself in this predicament. He asked for a chance to prove himself in the community and the chance to go to rehabilitation. I will structure the sentence to give him that opportunity.

42. The history came primarily from the report of Ms Godbee. The material about his background and the psychologist’s professional opinions are relevant to my assessment of his prospects and future risk. The material including his evidence allows for some understanding of how Grimes came to commit these crimes. The material allows for some understanding of the man now to be sentenced.

43. Ms Godbee’s history and analysis of the history of deprivation and exposure to drugs and alcohol, physical and sexual violence, is typical of intergenerational trauma experienced by many Aboriginal and Torres Strait Islander Australians. It is the type of profound deprivation described and reviewed by the High Court in Bugmy v The Queen (2013) 249 CLR 571.

Drug use

44. That the offender was affected by drugs this night helps explain, but does not and cannot excuse what he did. In fact, it made him more dangerous to the victims. It can help explain the impulsivity of his crime and the lack of any apparent planning for it, including his failure to in any way attempt to disguise himself. The drug history is relevant. It is the origin and extent of the addiction going back to when he was far too young to form any rational choices or personal choices about drug use or make appropriate judgments because he took up the drug use when he was a child are relevant.

45. The steps that he tried to take in the community and is trying to take while in custody and has promised to take in the future are relevant to how I structure the sentence: Henry v R (1999) 46 NSWLR 346, at [273].

Profound deprivation

46. The evidence before Ms Godbee establishes Grimes’s background. He was blighted by the abuse of alcohol and alcohol fuelled violence since the time he was born. If an offender is raised in a situation surrounded by such abuse this can mitigate the sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years have not been so marred. The effects of this profound deprivation do not diminish over time and should be given full weight in every case. A background of that kind described in the evidence before me leaves a mark on a person throughout their life, and here I found has compromised Grimes’s capacity to mature and learn from experience. It is a relevant factor in, and with, his history when I take into account his history of offending: Bugmy (2013).

46. Although now a mature adult, Grimes has never had an opportunity to live a normal life in the community. If he is to do so, he will need considerable assistance. He will have to make considerable efforts himself. The evidence in relation to his need for psychological treatment and help adjusting to normal community life all provide a basis for a finding of special circumstances. However in so finding I am mindful of the requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

47. It is also important to note that Bureau of Crime Statistics studies indicate that those who receive parole supervision upon release take longer to commit new offences and were less likely to commit a new indictable offence than those who were released unconditionally into the community. Evidence based approaches to custodial sentences should always be encouraged: see Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

COVID-19

49. The present crisis will increase the apprehension by all prisoners because of the risk that infections will spread in gaol. The increase in apprehension is reflected both in gaols and in the community in general. As a community we are being asked, urged, compelled to self-isolate. This cannot happen in gaol. Social visits have been suspended for an indefinite period, although access to telephone calls has been I am told increased. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities who have complete control over their lives. These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on the current knowledge of COVID-19 and the responses to the crisis as advised by Corrective Services New South Wales.

50. If, and I suspect when, COVID-19 enters the gaols to any significant degree early parole may be given to some prisoners: s 276 Crimes (Administration of Sentencing) Act 1999. The offender falls into a category that might be considered for early release because of the offences, but more importantly because he has asthma.

51. I cannot predict what will happen to this offender. But the lack of visits, reducing any capacity to remain in contact with prosocial friends and family, and the heightened anxiety and concerns are a relevant factor that must be synthesised along with all other matters. The extent to which those may be taken into account has to be resolved on the particular facts of a case: Brown v R [2020] VSC 60, at [48].

Guidance

52. While every offence and every offender requires individualised treatment, courts must in the exercise of their discretion take guidance from a number of sources that include here; the maximum penalty and, where relevant, the standard non‑parole period of five years. I must also have regard to the decisions of other courts particularly those to give guidance and of course, purposes of sentencing, which include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to the victims.

53. Grimes has been in custody since 12 March. I note the nature of the offences for which sentences were imposed in the Local Court. I note that had he not been bail refused that alternatives to full time custody may have been available to him, particularly given his need for drug rehabilitation. But, there still must be some period of imprisonment solely reparable to the LC matters. I propose to start this sentence from 12 April 2019.

Synthesis

54. Regardless of the reasons advanced by Grimes for his involvement, he chose to join and actively participated in a serious crime against fellow citizens. Their home was invaded. They were threatened and their property taken. While there are many factors that mitigate his sentence, mitigating factors can only go so far. There must be appropriate punishment the measure of retribution would ordinarily be expected. Retribution is a notion that reflects the community’s expectations an offender will suffer punishment, and particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court’s view of the seriousness of the crime and should let others know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at [205].

55. Sentencing courts, in matters which involve an invasion of a home, have an obligation to vindicate the dignity of each victim, to express the community’s disapproval of the offending, and to afford such protection as can be afforded to the vulnerable against repetition of the offending. One of the historic functions of the criminal law has been to discourage victims and their families and friends to resort to self-help and the consequent escalation of violent vendettas between member of the community that can follow commission of crimes such as this: see Munda v Western Australia (2013) 249 CLR 600.

Orders

56. I will indicate each of the sentences that must be imposed. Each of the sentences are reduced by 30% to take into account 25% utilitarian value of the plea and 5% for s 33 factors, past assistance.

57. For the aggravated break and enter I indicate a sentence of two years with one year, six months non‑parole period.

58. For the steal motor vehicle I indicate a sentence of eight months.

59. For the two obtain property by deception offences I indicate a sentence of four months.

60. The total aggregate sentence is 3 years 9 months. There will be a non‑parole period of two years commencing 12 April 2019 and expiring 11 April 2021. The balance of the sentence of 1 year 9 months is to commence upon the expiration of the non-parole period on 12 April 2021 and expiring on 11 January 2023.

61. Grimes will be eligible for consideration for release to parole on 11 April 2021. There will be a parole period of one year and nine months from that date.

62. The sentence reflects a finding of special circumstances to allow for, if possible, attendance at full time drug rehabilitation centre on release.

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Amendments

07 May 2020 - Formatting only - noted that two paragraphs have been redacted

Decision last updated: 07 May 2020