R v Hayes

[2022] NSWDC 400

District Court

New South Wales

Medium Neutral Citation:

R v Hayes [2022] NSWDC 400

Hearing dates:

29 July 2022

Date of orders:

02 August 2022

Decision date:

02 August 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate term of imprisonment of 4 years with a non-parole period of 3 years

Catchwords:

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence

CRIME — Violent offences — Stalking or intimidation

Legislation Cited:

Children's (Detention Centres) Act 1987

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes Sentencing Procedure Act 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

DPP(Cth) v De La Rosa [2010] NSWCCA 194

Imbornone v R [2017] NSWCCA 144.

Muldrock v R [2011] HCA 39

R v Fernando (1992) 76 A Crim R 58

R v Hammoud [2000] NSWCCA 540

R v Hayes [2004] NSWCCA 156

Tepania v R [2018] NSWCCA 247

Veen v R (No. 2) 1988 HCA 14

Category:

Sentence

Parties:

Regina (Crown)
Robert John Hayes (Offender)

Representation:

Nicholas Chambers (Solicitor for the ODPP)
Grant Slowgrove (Solicitor for the Offender)

Director of Public Prosecutions (Crown)
ALS (NSW/ACT) Limited (Offender)

File Number(s):

2021/00253595 & 2021/00224943

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Robert John Hayes appears for sentence upon two charges, the first of stalking, contrary to section 13(1) Crimes (Domestic and Personal Violence) Act 2007, for which the maximum penalty is imprisonment for five years, the second, enter a dwelling with intent to commit a serious indictable offence, namely stalking, contrary to s 114(1)(d) Crimes Act 1900, for which the maximum penalty is imprisonment for ten years. The offences do not carry a standard non-parole period for the purposes of Part 4, Division 1A, Crimes Sentencing Procedure Act 1999.

The Pleas

2. ​The offender was presented today and arraigned upon an indictment filed on 22 July 2022, reference 202111087_4.2. This contains two counts replicating the charges appearing in court attendance notices but for an error apparently made in the formulation of the particulars in the second of the offences, and thus the need to have to offender arraigned upon the charges upon which sentence is to be determined. This does not impact upon the utility of the pleas of guilty that were entered in the Local Court and from whence he was committed for sentence to the District Court. He is therefore entitled to the discount of 25% for utility. These are matters to which Part 3 Division 1A, Crimes Sentencing Procedure Act 1999 applies, and in accordance with s 25D(3)(a) of the Act the discount for the utility of the pleas of guilty is 25% of the sentences that would have otherwise been identified for the offences it they were not admitted.

Pre-Sentence Custody

3. The offender was arrested on 5 September 2021 and has been in custody since. The aggregate sentence I shall impose in accordance with the s 53A, Crimes Sentencing Procedure Act 1999, shall commence on that day.

The Facts

4. About 2.45pm on 5 September 2021, the victim was returning home to her apartment and identified the offender walking approximately one metre behind her as she approached her building. She noticed the offender pretend to hit the doorbell of the apartment block.

5. The victim unlocked the front door with her buzzer and the offender followed her through both locked doors and stood close to her. The victim asked him if he was visiting someone in the building to which he said, yes. The victim continued to her apartment on the fourth floor of the building. As she walked up the stairs, the offender followed about 1 metre from her. This caused her to be very nervous and uncomfortable. Once the victim reached the top floor where there is only her apartment and one other, she noticed the offender follow her to the apartment next door. She asked him who he was here to see, and he said this apartment and gestured to the neighbour’s door.

6. The offender then knocked on the neighbour’s door which was opened by TS. She said she did not know him. The offender said he was there to see Jason. TS confirmed that there was no Jason in the building and asked the offender if he was sure it was that address. The offender responded confirming that it was the right number. The victim waited outside of her apartment pretending to fumble with her keys, so the offender could not follow her inside. The victim was extremely apprehensive. The offender left about 10 minutes later, and the victim spoke with TS about what had happened.

7. TS went down the stairs to check that the offender had left the building. She noticed the offender leaving via the front door and that it closed behind him. He proceeded out the front before appearing to look at the intercom and then left via Hughes Street towards Victoria Street.

8. About 3pm the same day, the victim’s buzzer in her unit signalled. She answered and heard a male voice which she recognised as from the same person who followed her up the stairs. He introduced himself as “the guy who had just come up into the apartment block.” He said words to the effect of “you’re beautiful, we should go for a drink.” He continued asked her if she was single.

9. Three constables attended the address at Potts Point in response to the report of a man entering the complainant’s apartment building and loitering outside. One of the police officers spoke to the victim. She appeared to be distressed and trembling. The constable obtained a statement from her and TS provided a statement to one of the other constables.

10. The constable who spoke to the victim obtained CCTV footage from the Roosevelt Bar located a short distance away on Orwell Lane, Darlinghurst. One of the constables observed the victim in the same clothing and a male matching the description provided by the victim. The clothing worn by the male is there described. Two of the constables began patrolling Darlinghurst Road on foot in an effort to locate the offender.

11. About 5.00 pm one of the constables observed a male resembling the person shown on the CCTV wearing the same type of clothing.

12. One of the constables crossed the road and introduced herself to the offender by name and rank. He gave his name as Robert Hayes. A conversation followed recorded on body worn video. The offender indicated that he lived in Newtown but was in King’s Cross to visit a friend. He was cautioned and placed under arrest upon a charge of intimidation. He was taken to King’s Cross police station. He was offered the opportunity to participate in an interview, but he declined.

The Offender’s Explanation

13. The offender did not give evidence in the proceedings. I bring to mind the guidance from Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour said at [57] that untested out of court statements made to third parties should be treated with caution. Although, it should be a principle that is well-known and understood her Honour expressed the view that it seems necessary to restate it.

14. Her Honour derived following statements from the authorities she cited:

“(1) Statements made to third parties are generally admissible in sentence proceedings subject to objection upon the application of the rules of evidence, but courts should exercise considerable caution where there is no evidence given by the offender. In many cases, such statements can be given little or no weight.

(2) Statements to doctors, psychologists, psychiatrists, the author of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such untested evidence may deserve little or no weight.

(3) A court assessing the weight to be given to such statements may have regard to the fact that the offender did not give evidence and was not cross-examined. It is one matter for an offender to express remorse to a psychologist or third party and another to give sworn evidence and be cross-examined.

(4) If an offender for sentence wishes to place evidence before the court designed to minimise criminality, or otherwise mitigate penalty, it should be done directly and in a form which can be tested.

(5) Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted, generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions which make them almost impossible to verify or test particularly when served on the Crown in close proximity to or on the date of hearing. In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, “to treat this evidence with anything but scepticism represents a triumph of hope over experience.”

15. The absence of evidence from the offender other than by way of representations to a third party is a matter that requires appropriate circumspection in this case.

16. In Tepania v R [2018] NSWCCA 247, Johnson J provided guidance upon the assessment of objective gravity and the significance of moral culpability in the process of determining sentences. After dealing with the provisions introducing standard non-parole periods, his Honour continued,

“[112]. In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment.

[113]. The concept of ‘moral culpability’ was used by the sentencing judge in this and in submissions to this court. The term ‘moral culpability’ has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v R (No. 2) 1988 HCA 14, it was observed that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.

[114]. In Muldrock v R [2011] HCA 39, it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.”

17. In R v Millwood [2012] NSWCCA 2, Simpson J wrote at [69]:

“I would reject the proposition contained in the first sentence. I’m not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a normal or advantaged upbringing. Common sense and common humanity dictate that such a person would have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken to be implying that such a person bears no moral responsibility; but I consider that the DPP submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional”.

That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as then was) and R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

18. I have gone to these authorities because of the material put before me and the arguments advanced on behalf of the offender. As noted on the behalf of the offender the court is to determine sentence upon what the offender did, not what he might have done had he continued in the pursuit of this victim in a manner comparable to conduct in his past offending.

19. By his pleas of guilty the offender has admitted the elements of the offences including that he was engaged upon stalking the victim as proscribed in s 13(1) Crimes (Domestic and Personal Violence) Act 2007, which included that he so conducted himself with the intention of causing the victim to fear physical or mental harm. The assessment of this matter requires the court to consider whether the material allows a finding that either or both fears were his purpose. I am satisfied beyond reasonable doubt that he intended both.

20. The position advanced for the offender is that he ought to be accepted as someone who, because of his wish to return to jail, behaved as he did to be caught by the police. The Crown submits that whether he was motivated by sexual interest in the victim or was looking to be arrested, the offending was serious and predatory. The Crown notes that when he had the opportunity to be arrested by waiting at the scene shortly after the events, he did not do so, which allows the court to find that it was sexual interest that motivated him. Whether his motivation was his arrest, or he had sexual interest in the victim, it would be open to find that he intended her to fear both physical and mental harm.

21. Upon the material before me I find that the offender was attracted to the victim, that he sought to have her attention and engage with him to fulfil his desires, and the conduct amounted to stalking intending thereby to cause her to fear physical or mental harm.

22. Notwithstanding the victim’s disinterest implicit in her responses to his efforts to engage her, the offender conducted himself such that he could not but know that she was fearful of harm in terms of the charges to which he has pleaded guilty.

23. Upon this analysis I have assessed the objective gravity of the conduct in which the offender engaged to be in the mid-range, bringing to account the offender's age, that the offending extended to within the victim's home unit building proximate to her apartment, his pretence in ringing the doorbell until she unlocked the door to the building thereby providing access, his misrepresentations to her, and his subsequent invitation to have her come for a drink made via the intercom.

24. I have brought to consideration the material tendered in the offender's case including the psychological assessment; I shall make further reference to that in detail when I come to deal with his personal circumstances.

25. I agree, as I said, that upon either reason for his conduct for these offences, it was predatory and serious.

The Offender

26. The offender was born in 1975. He is now 47 years of age. He has a troubling record of antecedent offences.

27. The first item on his record is an appearance in October 1992 for attempted sexual intercourse without consent with an alternative of indecent assault. He was ordered to serve a control order of four months, with an additional term of eight months. This was in the District Court, but at the time he was dealt with as a juvenile.

28. In October 1992 on the same date an offence of assault with intent to have sexual intercourse was discharged upon the plea of guilty being accepted to an alternative of assault causing actual bodily harm. For that offence he suffered the control order of four months, with an additional term of eight months in the same court.

29. On the same day and the same court for maliciously inflicting actual bodily harm with the intent to have sexual intercourse he pleaded guilty to an alternative offence which the Crown accepted in discharge of that charge. The offence to which he pleaded was one of indecent assault and for that he suffered a control order of 12 months to be released after four months under the Children's (Detention Centres) Act 1987 to comply as directed to seek employment and participate in a community youth program. The offending the subject of that prosecution was charged in May 1991. He was then 16 years of age.

30. On 19 September 2003 in the District Court of Sydney for sexual intercourse without consent he suffered a sentence of imprisonment of eight years with a non-parole period of five years and three months. That was taken to the Court of Criminal Appeal on 19 May 2004. Leave to appeal was granted, but the appeal was dismissed. The conduct which brought him before to court for that offence is the subject of the NSW Court of Criminal Appeal judgement in R v Hayes [2004] NSWCCA 156.

31. Before I discuss those facts, I will note that before that court this was but one of the matters in which the offender sought leave to appeal.

32. On 19 September 2003 also in the Sydney District Court he suffered imprisonment for two years for entering a building with intent to commit an indictable offence and another two years for indecent assault - a common assault charge was taken into account. Both of those sentences were concurrent. Those offences were also unsuccessfully pursued in applications for leave to appeal. Leave was granted, but the appeals were dismissed.

33. On 23 September 2003 he was before the local court charged with larceny, but that was taken into account in the proceedings in the District Court.

34. On 17 December 2014 in the District Court he appeared upon charges for which he suffered imprisonment for five years and six months, and assault with an act of indecency, for which he suffered imprisonment for 18 months, stealing from a person for which he suffered imprisonment for 18 months, and aggravated entered dwelling with intent and using corporal violence, for which he suffered imprisonment for four years and six months. The first of these sentences began on 1 May 2014 and others were commenced thereafter with the result they were partly accumulated and partly concurrent.

35. On 13 July 2020 in the Local Court at Fairfield he was imprisoned for 12 months for stalking or intimidation. That sentence commenced on 14 May 2020. The non-parole period of nine months concluded on 13 February 2021 and the head sentence of twelve months concluded on 13 May 2021.

36. The offending with which I am now concerned occurred less than four months later.

37. In August 2021 for an offence on 6 August 2021, a charge of stalking and/or intimidation, he was ordered to submit to a community corrections order of 12 months. He was in breach of that order in the commission of the offences with which I am now concerned. I announced on the last occasion it was my intention with his consent to deal with the matter, which I did. I found that the community corrections order was breached by the misconduct upon which I am about to impose sentence, but in the circumstances I propose to take no action on that breach because of the sentence I am about to place. The Crown provided material relevant to these matters. The offence of intimidation or stalking that was dealt with at Liverpool on 24 August 2021, and in respect of which he was subject to the community corrections order upon which I am now taking action for the breach, arose from a dispute between the offender and his family. His sister asked that he submit to a Covid test to ensure that he was not Covid positive. In the course of his refusal to do so, she responded, "If you do not go and get a Covid test done today, don't come home." The argument then evolved. He became angry and said, "Well you better watch your cars tonight, because I'm gonna smash them." He continued, "If I'm gonna go down I'm gonna take you out." That led to a call for police, their intervention, and that prosecution.

38. The charge of intimidation dealt with on 13 July 2020 at Fairfield is before me by way of the facts that were presented to that court. Between 5.10pm and 5.20pm on 14 May 2020 he was standing outside a railway station on the opposite side of the road outside of hotel premises. He was watching members of the public walking from the railway station. He noticed a young Asian female walk away from the railway station. He walked along the footpath in the same direction on the opposite side of the road watching her as he did so. He followed her until he noticed that she entered the passenger side of a vehicle parked nearby to the railway station and it drove away. He turned and went back to the railway station. He saw another young female walk past him. As they crossed paths he headed back to the railway station to where he had been standing. There were several other persons walking past him.

26. He did not appear to speak to anyone but took notice of the second female as she walked past him. He conducted a round-about turn and followed her. This victim, details of whom are known to the police, continued to walk on the footpath heading toward a street in Cabramatta listening to her music on her earphones. He followed her. About 5.22pm she could feel someone walking closely behind and could see a shadow on the ground to the right-hand side as she walked. She knew someone was close to her but did not turn back to look. She felt uneasy and turned the volume of her music down. She continued to walk toward the carpark where she was headed where she had her vehicle parked. As she proceeded, she realised someone was close to her.

27. She turned to look behind and saw the offender. He was 1.5 metres away. She was scared. She walked alone after finishing work, she removed her earphones, she again turned around and he was then about half a metre from her. She moved to the right of the footpath and stopped to let him go past. She noticed him pull out his mobile phone and place it to his ear. As he walked past her, he looked at her, she was able to see his face sufficiently to identify him. He continued walking. A few seconds later she continued on to the carpark. As she got to the entrance she saw him standing outside the carpark with another male. She could not hear them speaking. She entered the carpark and noticed that he still had his mobile phone to his ear and appeared to be watching her.

28. She began to run to the carpark out of fear. She ran up a ramp to level 1 where her car was parked. She quickly entered the vehicle and locked the door. She could see through the windscreen the offender walking in the lower level of the carpark toward the down ramp which she had run up before getting to her vehicle. She was scared and began to shake. He began walking towards the up ramp. She put her vehicle into drive and went in the other direction in the carpark. She drove to the top of the carpark in an attempt to escape from him. She realised there was no other exit and would have to go down the ramp in order to leave. She called triple-0 on her phone and then began to drive back down.

29. He was searching the carpark. He walked to the stairwell and closed the door to that behind him quietly. He then went up the stairs to level 5. He looked out into the carpark from the stairwell and re-entered it and made his way down to the bottom level of the carpark. He left the stairwell; at this stage the victim had driven her vehicle slowly down from the top to the bottom. She exited the carpark while speaking to the triple-0 operator. She left the carpark onto the street and saw the offender standing on the footpath near the exit.

30. He walked over to her passenger side window. He looked inside her vehicle moving his arm in a fashion that indicated he was about to knock on the window. She was so scared she screamed on the phone to the triple-0 operator and drove off. She was in a state of panic. She stopped the vehicle behind other cars. As she was attempting to make a left-hand turn, she saw him in her side mirror walking quickly down the footpath towards her vehicle. He was then about ten metres from her. In her panic she drove around the stopped vehicles and turned left into the street and continued on until she could no longer see the offender.

31. Upon returning home, she was asked to attend Cabramatta Police Station. She provided a statement. Police accessed the closed-circuit television cameras, which monitored these events from 5.10pm onward. There were patrols conducted. They located the offender, again in the vicinity of the railway station, near the hotel. He represented that he was trying to buy drugs. He was arrested. He acknowledged that what he did would have scared her.

32. Offences from which as I understand the material were also before the Court of Criminal Appeal, included events beginning at 11.45am on 3 November 2013, where the victim went to a convenience store and purchased some milk and food. She walked back to her residence. As she approached the entrance to the unit, she saw the offender walking close behind her. She unlocked the door, entered the ground floor and he followed her inside. She walked down the corridor and into a small foyer area where the lifts were located.

33. She was holding her wallet and shopping bag in her left hand and the keys in her right hand at that point. He stood to the right of her in the foyer. As they waited for the lift he said, "Are you going to sleep now? Where are you sleeping?" She replied, "What?" He said, "I mean if you're going to bed, would you like to play with me or have fun with me?" He then pulled the front of his trousers down with one hand. With the other hand he took out his penis and exposed it. He said, "Come on! Have fun with me." He came closer to the victim. She put her hands up to push him away. She pushed him in the vicinity of his shoulders and began to yell and scream. He was still exposing his penis at that point.

34. He pushed hard against her shoulders with both hands causing her to fall into the lift and drop her shopping bag and wallet. She sustained a burn to her left knee as she fell. He picked up her wallet and ran off with it. He opened the locked security door and ran into William Street, ran west before turning right into Dowling Street, and then into Daffodil park. On 5 November 2013 police seized CCTV footage and found product showing the offender at the front door and leave the building. The victim identified him from a photo array.

35. Another victim suffered this offender at 12.40pm on Wednesday 6 November 2013. She left her unit in Elizabeth Bay to meet a friend, and as she walked out of the main door she saw the offender on his mobile phone. He said, "You have a beautiful smile." She walked past him and met her friend for about 20 minutes before returning. He was still at the front of the main security door at the units.

36. She used her key to unlock the main door and walk in. Just as the door had almost shut, he grabbed the handle, he opened the door, and stepped inside. She lived on the second floor but preferred the stairs to the lift. As she began to walk up the stairs, she noticed that he was following her two or three steps behind. When she arrived on the second floor she unlocked her front door and shut it behind her and put her keys and phone on the table.

37. A few minutes later he knocked on the door. She opened it slightly and asked what he wanted. He asked for a piece of paper and a pen to leave a note for his friend. She closed the door, got some paper and a pen, she again opened the door slightly and handed that to the offender. He appeared to start writing and then said, "Can we go for coffee?" She said, "No, I can't, because I have to go to work soon." He said, "Do you have a boyfriend?" She said, "Yes, I have." He said, "How long have you been with your boyfriend?" She said, "Three years." He said, "Can I just get your number or something?" She said, "Of course not. You can't get that." He appeared to finish writing on the paper and said, "Can you give me a kiss?" Her response, "Are you serious?"

38. He stepped towards the door and stepped into the unit. He reached over with both hands and placed them on her breasts. She moved away quickly and ran inside the unit looking for her phone. She was screaming; she repeatedly screamed out, "Get out of here. I’m going to call the police." He stood a metre inside the victim's unit. He stared at the victim, undid his belt, and pulled down his jeans half-way down to his knees. She was panicking and searching for her phone. She found it and began to unlock it. When he saw her holding the phone, he ran out of the unit. She shut the door behind him and phoned a friend to report what had happened.

39. On Friday 8 November 2013, the police went to the block of units and seized CCTV footage which showed the offender loitering in the premises. This victim selected the offender from an array of photos. He was arrested 6 November at Malabar. They found items of clothing consistent with those that were worn on these occasions. He participated in an interview on 19 November.

40. The CCA judgement, which was handed down on 19 May 2004 upon an application for leave to appeal from a sentence of 12 years imprisonment with a non-parole period of nine years and three months, concerned an offence of sexual intercourse without consent on 4 March 2001. The facts are described. He approached a 28-year-old female - a Czechoslovakian tourist - in Surry Hills. On the pretext of taking her to a better location to hire a taxicab, he took her into a side street, physically assaulted her, then had forcible penile-vaginal sexual intercourse with her. He was identified by DNA match.

41. While on bail for that offence seven months later he committed an offence on 4 August 2002 of indecent assault. He engaged a prostitute at Kings Cross, purporting to take her to his home, but took her into a laneway, where he grabbed her, swung her around, causing her to fall to the ground. He then pulled down her singlet, exposing her breast and sucked it. Neighbours heard the cry for help that she uttered and called out, whereupon he fled the scene. He was identified via DNA. There were offences taken into account.

42. A third offence on 23 February 2003 was of entering a building with intent to commit an assault. This was six months after the indecent assault, and the larceny taken into account in that matter and 23 months after the earlier sexual intercourse without consent offence. He had entered a unit block at the same time as a female occupant at almost six in the morning. He followed her to her unit and tried to force his way in. She managed to repel him, but only after a struggle at the front door. The police were alerted and apprehended him at the scene. There were other offences taken into account. Solomon DCJ imposed the sentence of 12 years with a non-parole period of nine years and three months, with which the Court of Criminal Appeal would not interfere.

43. Thus he was in custody for a lengthy period of time, during which the community was protected from his egregious behaviour.

44. His custodial record is relevant to the assessment of this matter because I am asked to consider that as a special circumstance the custodial component of the sentence today should be reduced against the risk of institutionalisation, and in that it should be so dealt with on the basis that he did not intend anything more serious than to be arrested by the police.

45. He was first in adult custody on 24 July 2003 - that was for two days. He was returned on 31 July 2003 and remained in custody from that point on until 30 April 2020. He was at large until 16 May 2020 and then was paroled on 13 February 2021.

46. On 6 August 2021 he came into custody for two days. On 6 September 2021 he came into custody and according to the custodial record continued in custody until 9 October 2021.

47. The court has referred to the other sentences and the point of his release, and the proximity between that and the offending with which I am concerned.

48. This history is relevant not to aggravate the objective seriousness of the offences with which I am concerned, not to increase what is otherwise the appropriate proportionate sentence to the misconduct, but it does have significance to the consideration in appropriate terms to specific deterrence; to consider whether there are prospects of rehabilitation; and to consider whether this background is such as to require the court to attribute weight to the need to protect the community

The Victim Impact Statement

62. Before I turn to the material handed up in the offender's case, I note that there is a victim impact statement by the victim. The fact that she was fearful of physical and mental harm, indeed one might say she was fearful of physical harm and experienced the anxiety that could amount to mental harm, is reflected in what she has provided. This was written on 20 July 2022. She did not take the opportunity to read the document; I shall do that. It is addressed to the court, and she writes,

"I believe that if it weren't for the particular choices I made and the actions of a neighbour my interaction with the offender would have ended in a far worse manner in line with his intentions. It still disturbs me to think about how much of a close call this was. I lived alone at the time and was at the harshest point of Sydney's lockdown. The incident greatly compounded the feelings of loneliness and claustrophobia I was already experiencing.

Having been in a scary and unsafe situation I needed to be with friends and family more than ever. However, due to the lockdown rules I was not able to see or stay with anyone. The rules also meant I had no choice but to stay in my apartment most hours of the day, where I no longer felt safe, and which brought back memories of the incident from which I had no distraction. The incident took away the natural trust and politeness I had for people I didn't know. It also has led to a much higher level of paranoia when it comes to things like men walking closely behind me, my apartment intercom buzzing, and noises outside my apartment door."

63. There is no material upon which one could conclude that the sequelae for this victim involved her suffering substantial psychological harm, but it is a fair reflection, in my view, of the impact of misconduct such as this and the likely effect it would have upon a victim, not so that it should be an aggravating factor to be taken into account in the assessment of sentence, however.

The Offender’s Case

64. On the behalf of the offender I was provided with a chronology. He turned 18 on 18 February 1993. He came into corrective services custody 27 July 2003. He was first sentenced for imprisonment 19 September 2003 at age 28. At age 47 he now faces a further sentence. His adult life is put at 29 years, five months and ten days, and it is said that his period in custody accounts for 62.5 per cent of his adult life. This is offered in support of the proposition that there should be a finding of special circumstances based upon the risk that he might be institutionalised.

65. The psychological assessment written on 12 July 2022 follows a referral by his solicitor. The report notes limitations. In para [6] the author notes that the report is focused upon his background information, treatment progress, and treatment plan. She did not have access to information available regarding his previous participation in custodial treatment programs. The assessment took place via AVL within a restricted timeframe, namely two hours.

66. There were also limitations inherent by virtue of the fact that she performs her role as a treating psychologist, and because of the therapeutic nature of their working relationship, which would necessarily limit her role for the purposes of the assessment. How that is to be is not explained. It is then said that the report is not intended to be an assessment report, however, should any additional pertinent information become available or if the offender's circumstances significantly change, this may change the opinions expressed. The report is in response to a specific referral and psychological functioning can change with time and circumstance.

67. Thus the report appears to be prepared upon the single session semi-structured clinical interview without psychometric testing, and it appears that the author might have put to one side whatever knowledge or appreciation she has as a consequence of the therapy that she has provided in whatever their working relationship might have been.

68. She reports that he appeared to become emotional when answering certain questions, but that the emotion appeared to be congruent with the topics being discussed. He is said to have been generally forthcoming with information and tried to provide accurate information regarding dates and times. His mood was flat, although somewhat apprehensive about the outcome of the current matter. Otherwise, he was oriented to time and place and there were no unusual mannerisms observed.

69. His history was discussed in some detail. He is the second of seven children born to his parents. His father was a truck driver. His mother stayed at home. His childhood was unremarkable until his father came home one night and told them to "pack up their stuff" and they left. It emerged that his mother had been having an affair, and she had left them to be with her new partner. He was about 13 when this occurred. She moved to Queensland, where she remained for several years before she came back and reunited with his father, when he was about 17 or 18. The years after her departure were challenging. His father had to struggle to provide, care for, and raise seven children. There were multiple relocations, general transience, and periods of homelessness where they lived in a car, caravan park and moved around quite a bit to use his words.

70. They lived in a church hall, slept on mattresses on the floor. He was angry toward his mother because she had abandoned them. When she returned, he saw the aftermath of a brutal assault upon her by her ex-partner - I take that to be the man for whom she left her husband. His father was out of work because of a back injury. They struggled financially. Upon leaving school in year 9 he began working to assist his family. He gambled and that became a problem for him. He acquired this habit probably from seeing his father engage upon greyhound betting. He said he was sexually abused between the ages of 7 and 13 by a man he met playing AFL. He did not tell anyone about that. He said between 13 and 15 years he was sexually abused by two further men, and he did not disclose that until 2010, when incarcerated. He said this had a profound impact upon his sense of masculinity.

71. He moved out of home at age 21. Before the current offences he was living with his sister, her husband and children, and his mother and father. His father passed away in 2021 after a battle with lung cancer. There were further fractures of family thereafter, because of conflicts arising from his father's life insurance apparently. There was argument that led to the charge of intimidation, to which I earlier referred, where he threatened his sister over the telephone.

72. He is in contact with two brothers, one of whom is incarcerated due to be released in August this year. He had one relationship when he was 23 years of age. It lasted two years before it ended. He was vague and unclear as to why that happened. He went to five primary schools through his education years. He denied behavioural issues at school. He went to Campbelltown High School until he dropped out in year 9. He has had various roles, including selling ice creams, collecting rubbish, and working as a storeman. He has worked as a sweeper in his present circumstances. He would like to have another go in the community. He is not sure where he will live. Residing with his family is no longer an option for him.

73. He has no past or present medical or mental health conditions. However, the psychologist suggests that he meets the diagnostic criteria for post-traumatic stress disorder - more accurately described as complex post-traumatic stress disorder, according to the diagnostic criteria in the 11th revision of the World Health Organisation International Classification Of Diseases.

74. It is not suggested that a psychologist is qualified to diagnose anyone, but it is not beyond the scope of the work to identify characteristics that might inform a diagnosis of a particular condition or illness that might be identified by an appropriately qualified healthcare professional.

75. Since being in custody he has fleeting thoughts of suicide, wondering if things would be easier. He used alcohol to excess it appears. His prior history is discussed and then the current offences are addressed. At para [25] the following appears:

"Mr Hayes acknowledged that he felt overwhelmed in the lead to the current offences (see paragraph 13) and, 'The day before, I decided I just needed to go back to prison…it was all too much…felt helpless, overwhelmed, alone, best thing to do go back in'. He said that in the months leading to the offences, he had had several significant events; the death of his father in June 2021; family conflict following his father's death; his sister taking out an AVO against him in July 2021; Covid-19 restrictions affecting his engagement in therapy; Mr Hayes being homeless for a period before securing his own place in July 2021; losing his job by August 2021 due to the Covid-19 lockdown; and an argument in public with his brother Michael four days before the offence. Mr Hayes said he felt that he had very little left in the community and wanted to return to prison, where he felt safer, more respected, and less alone."

76. He continued in that vein with the reference to the breakdown of the relationship with his sister and that he felt he would be better off in jail. At para [27] the following appears:

"Mr Hayes said on the day of the offence, he noticed the victim and he said he decided to follow her. He admitted that he was attracted to her, and he wanted to see if she was interested in going out for coffee. He said that he realised that it would not go any further, and thought to himself that she would certainly contact the police if he were to return and so he did that. He said that he was capable of 'doing more to her…ample opportunity to do more' if he chose to, however, he just wanted to 'do enough' to ensure that she would contact the police.

Mr Hayes conceded he had 'Done the wrong thing, I shouldn't have scared [the victim], in my head it [was] a stupid thing to do, I wasn't going to attack her, I just wanted to do a thing to put me back inside, escape to get away from the pressures…I've hurt so many people…I've taken another weak option instead of confronting it and dealing with it'. He said afterwards, he wandered the streets of Kings Cross waiting for police to apprehend him. He pointed out that he had $160 in his pocket, so he could have chosen to leave the location if he wanted to evade arrest; he said that this was not what he wanted, however, and thus he remained in the vicinity waiting for his arrest."

77. I do not accept that proposition. There is no evidence of that other than the representations attributed to him by the psychologist, and they are inconsistent with what in fact occurred. He did not remain at the scene, and when he was apprehended by the police he declined the opportunity to participate in an interview, all of which is inconsistent with his position advanced to the psychologist.

78. I accept, which has to be the case upon any objective assessment of the material, that he was attracted to this young woman. For that reason he had approached her.

79. The report then deals with treatment progress. This tells me that she began working with the offender in April 2021 when first referred by his parole officer, she talks about the rehabilitation program. In custody he could not continue on the maintenance program because of the short period of parole. But he engaged with therapy with the psychologist. His current progress is then discussed with some detail regarding his response to therapy.

80. The opinion offered in para [3] is that in the lead-up to the offences he was feeling overwhelmed, isolated and alone, and had experienced a series of significant events in close succession. He coped with this the only way he knew, which was to avoid matters by engaging in conduct intending to send him back to prison, where he would be removed from the everyday stressors of the community.

Submissions

81. The submissions made on the part of the offender referred me to Bugmy v The Queen [2013] HCA 37 and the Fernando principles. I accept that he has had disadvantage through his formative years, which must have impacted upon his development into adulthood, and this impacts upon the assessment of moral culpability consistent with what Simpson J said in R v Hammoud [2000] NSWCCA 540.

82. The objective criminality is noted to be not at the higher end of objective seriousness. I agree with that; it is at mid-range; I am reminded of the early guilty plea.

83. Reasons for the offence being placed not at the higher end are advanced. I am reminded that the offence involved limited planning, sophistication and organisation. I would say it was more opportunistic than it would appear on the material before me, but it did involve a measure of sophistication by means of which he was able to get inside the premises and put himself in circumstances proximate to the victim, consistent with what had occurred in past similar behaviour. The offence was in the home of the victim albeit in the communal space.

84. Whatever threat of harm was intended, it was not in fact implemented, the submissions remind me. I am reminded that the approach the court must take to the record of antecedents. The threat of violence in the circumstances is an aggravating factor with which I agree. I am reminded that a serious indictable offence is defined was a potential act which has the maximum penalty of five years or more, and the offence that was the subject of the charge in count 2 - being of intimidation or stalking - was one with the maximum penalty of five years – which informs the assessment of the objective gravity.

85. It is conceded that the offender is not entitled to leniency. One needs to bring into account assessment of the principle of proportionality. That the offence was not planned or organised was offered as a mitigating factor. I do not take it as such.

86. He has to be given the benefit of the remorse reflected in the plea of guilty, I accept. It is said that he is attributed with remorse by the psychologist, but that must be assessed in light of the represented purpose of his misconduct, which I do not accept to be what it was about. I accept upon the material before me that he was there because of the interest he had developed in this young woman, which he was unable to exploit notwithstanding his efforts. I note that the Bugmy and Fernando principles and what was said by Simpson J R v Hammoud [2000] NSWCCA 540.

87. It is said that I should impose an aggregate sentence with a large measure of concurrence if not entire concurrence between the two offences. There will be concurrence but not to the extent that one offence is subsumed in the other. The stalking was not only within the premises, but it was outside of the premises before he entered and then later when he made use of the intercom system making contact with the victim. There should be some modest accumulation in the aggregate sentence.

88. I am reminded of what McClellan CJ said in DPP (Cth) v De La Rosa [2010] NSWCCA 194 where an offender suffers from a mental condition, extending to him the benefit of the matters identified by the psychologist which she said would support a diagnosis of complex post-traumatic stress disorder. I accept that the offender's culpability might be reduced. As a consequence the offender might not be the most appropriate vehicle for general deterrence. There is nothing to tell me that a custodial sentence would weigh more heavily upon him; indeed that is inconsistent with the basis upon which his case has been presented. I do not believe it reduces the significance of specific deterrence in this case. I am satisfied that because of whatever his attitude might be evolving from the factors the psychologist has identified, he does present a danger to the community requiring an increase in the sentence that might otherwise have been reduced were that not a factor.

89. The Crown argues against special circumstances. I agree that this is not a case for a finding of special circumstances upon the material that I have, notwithstanding the risk of institutionalisation that has been advanced to me. In any event the parole period that I have identified has one quarter of the overall sentence to be imposed in the aggregate should provide more than adequate time for the offender to reintegrate into the community and hopefully build upon whatever progress he makes in custody to redirect his path from the propensity that he has so far demonstrated for this type of behaviour. I have had regard to the Crown's written submissions and noted the aggravating factors that have been identified.

90. The Crown submits, and I agree, that the subjective case offered on behalf of should not be allowed to overwhelm the objective gravity of the offending. The Crown refers to the report from the psychologist beginning at para [18] and quotes from it. I am asked to embrace caution when considering the opinions that the psychologist has offered based exclusively upon unsworn and untested histories, and without any objective testing. The Crown challenges the reported diagnosis of complex post-traumatic stress disorder. I have already expressed a view about that.

91. The Crown submits that the self-serving statements by the offender attempting to minimise his actions demonstrate no genuine remorse or insight into the effect of his offending. There is some merit in that view. I agree that the prospects for rehabilitation are poor. The Crown concedes that there has been some progress indicated by participating in the therapy to which the psychologist referred, but not sufficient, the Crown submits, to justify an adjustment in sentencing ratio.

92. The Crown also submits there is a lack of evidence to establish any connection between the offender's mental health and the commission of the offences. I agree with that submission. It does not follow though that one should not consider the factors identified by the psychologist when weighing the extent of any impairment he might suffer from the characteristics which he has advanced. It is not necessary for it to be shown that there was a causal connection between whatever the psychologist identified and the misconduct before the offender would be entitled to the appropriate weight to be attributed to it.

93. I agree that the line provided under s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed, and no sentence other than full-time custody is appropriate.

94. The purpose of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 are all applicable and require comment. General deterrence must be given appropriate weight, I hope that the sentence might prevent others from engaging upon similar conduct. Specific deterrence requires appropriate weight in this case in light of the history that is revealed in the offender's antecedents. There is a need to provide protection to the community from the offender, who has a propensity for this misconduct. Hopefully, he will continue towards rehabilitation in custody and build upon that in the parole period once he is eligible for release. He is to be made accountable for his actions and the conduct must be denounced, and the harm that the victim's suffered in this case must be recognised in what I am about to do.

The Sentence

95. The offender is convicted of each of the offences. I impose an aggregate sentence including a non-parole period of 3 years commencing from 5 September 2021. The head sentence is one of 4 years. He will be eligible for release to parole on 4 September 2024. For the offence of stalking charged in count in count 1 the indicated sentence is one of 2 years and 3 months, reduced to that level by a discount of 25 percent. For the offence charged in count 2, the sentence is one of 3 years and 9 months reduced by a discount of 25 percent for the utility of his pleas, as in count 1.

96. Thus to repeat the sentences the indicated sentence for count 1 is 2 years 3 months, for count 2 is 3 years 9 months, the aggregate sentence is 4 years consisting of a non-parole period of 3 years from 5 September 2021 expiring on 4 September 2024 with the overall sentence to expire on 4 September 2025.

97. No other orders were sought. The exhibits are to remain on file.

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Decision last updated: 06 September 2022