R v John

[2019] NSWDC 843

District Court

New South Wales

Medium Neutral Citation:	R v John [2019] NSWDC 843
Hearing dates:	23 August 2019
Decision date:	30 August 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	The offender is convicted. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a Community Correction Order for a period of 18 months commencing today. The conditions to apply during the term of the order are as follows: STANDARD CONDITIONS You must not commit any offence. You must appear before court if called upon to do so at any time. ADDITIONAL CONDITIONS Abstain from the consumption of prohibited drugs and drugs not prescribed for him. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance. The offender is to report to the OIC at the Albury office of CCS before close of business today, Friday 30/8/19.
Catchwords:	CRIMINAL – Sentence - aggravated enter dwelling with intent, knowing persons there – in company – background of abuse and neglect – degree of intellectual & psychological impairment – objective seriousness at bottom of range – other subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina John, Adam
Representation:	Counsel: Defence: Ms C Mendes   Solicitors: Crown: Mr A Dixon
File Number(s):	2018/00258522

Judgment

1. Adam John appears for sentence. Mr John is a 36 year old in respect of who both nature and nurture have conspired to ensure that he has had a tragic life.

2. He appears for sentence in relation to a single offence of aggravated enter dwelling with intent, knowing persons there, contrary to s 111(2) of the Crimes Act 1900. The maximum penalty provided is 14 years’ imprisonment and there is no relevant standard non-parole period.

3. He was committed for sentence on 2 April 2019 from the Albury Local Court, and I accept that he is entitled to a 25% discount for the utility of the plea alone.

4. He was arrested on 22 August 2018 and released the following day.

5. At the time of the offending, he was subject to s 9 good behaviour bonds of 12 months in relation to each of two shoplifting offences. The bonds commenced on 3 July 2018 and expired on 2 July 2019.

6. The facts are agreed and are as follows:

BACKGROUND

7. The offender resides at a unit in a complex in Thurgoona Street, Albury. A Daniel Roulton and a Thomas Sands also resided in the unit complex.

THE OFFENCE

8. A one-bedroom apartment on the ground floor of the complex was occupied by Jackson Saba and Kirsty Hartley, who were in a de facto relationship.

9. At about 1am on 18 August 2018, Saba and Hartley were at home and were engaging in an argument when they heard a knock at their front door. Hartley went to the front door and opened it about 30 centimetres. The offender and the co-offenders, Sands and Roulton, were standing at the front door. Sands said, “Is Jackson here?” and Hartley responded, “Go away, we’re having an argument.” She began to close the front door when Sands kicked the door, forcing it open.

10. Sands and Roulton walked inside the unit and the offender took a step inside the doorway.

11. An incident followed involving Sands, Roulton, Saba and Hartley. Saba was injured during this incident. (The facts contained no information as to the nature of any injury.)

12. Throughout the incident the offender remained at the front doorway just inside the unit door. At some point while they were inside the unit the offender said to Hartley, “This has to happen.”

13. Following the incident, Saba went to the lounge room window of the unit which was partly opened and opened it before climbing out of the window and running from the complex.

14. The three offenders ran out of the unit after Saba had climbed out of the window.

ARREST AND INTERVIEW

15. On 22 August 2018, the offender presented himself to the Albury Police Station. He indicated to the police that he was there because “My name was mentioned in the home invasion when I was home all night with my wife. My wife is my alibi.” He was placed under arrest.

16. The offender agreed to participate in a record of interview under caution and on tape. He denied any involvement in the offending. The charge laid was that he entered the dwelling house of Kirsty Hartley in Thurgoona Street with intent to commit a serious indictable offence therein, to wit intimidation in circumstances of aggravation, to wit he knew that there were persons present within the said dwelling.

17. As I have previously indicated, there is no evidence of any injury other than the bald statement that there was an injury to Mr Saba.

18. There is no evidence of any damage to property, and in relation to this offender, it appears that his role was limited to attending with the two co‑offenders and doing no more than actually stepping inside the doorway and making a single statement to Ms Hartley.

19. There is no information contained in the agreed facts as to why, at 1am while Sabra and Harley were arguing, the three co-offenders attended the unit.

20. In the circumstances, acknowledging the offence occurred in company and that the offender is essentially liable for the acts of each of the co‑offenders, in my view, taking into account his particular lack of any significant role, the objective seriousness of the offence falls at the very bottom of the range, that is, without taking into account any of the offender’s personal circumstances or difficulties as previously referred to in relation to the combination of both nurture and nature.

21. As to subjective matters, the Court has before it the offender’s criminal histories in New South Wales; Victoria and Queensland; a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report; an Assessment Report from the Harris Field State School, dated 19 November 1993, under the hands of Guidance Officer N. Passi and Deputy Principal M. Chakalakis.

22. In addition there is a report under the hand of J Houston, Guidance Officer, from the Beenleigh Special School located in Queensland, dated 26 May 1995; a Speech and Language Therapy Report in respect of an assessment on 9 October 1995 by Jackie Clark, being a Speech Language Pathologist at the Beenleigh State School, and a Summary for Ascertainment, dated November 1995, again under the hand of J Houston, Guidance Officer.

23. In addition to those historical reports, there is a psychological report from Anne Lucas, a psychologist with Duffy Robilliard, dated 17 June 2019. Further material in relation to subjective matters is a letter to the Court from Ms Norma Morris, undated, but which I accept was prepared for the purposes of these proceedings.

24. Finally, there is a letter dated 22 August 2019, under the hand of Nicolle Kirk being a centralised intake and brief intervention specialist employed by Yes Unlimited.

25. The offender did not give evidence on sentence.

26. In respect of his past criminal history in Queensland, Victoria and New South Wales, I will simply note that it is extensive.

27. Despite the extensive nature of his criminal history, he has spent comparatively less time in custody than one might expect. All sentences previously imposed have been for relatively short periods, that is, months rather than years.

28. There is a not insignificant range of offences that have been committed by him in the past. Of note in particular is the number of times in respect of which the sentence has been the subject of a raft of conditions designed to assist him.

29. I have, of course, had regard to the whole of the criminal record, although I have not referred to it in detail in these reasons as I regard it as being unnecessary to do so. The reason that Mr John has spent little time in custody is plainly the result of the Courts’ continuing to acknowledge his personal difficulties.

30. I note that the Harris Field State Report, compiled when he was aged ten and then in Year 5, amongst other findings, found that he was mildly intellectually handicapped and that he had an extremely transient school history and disruptive family circumstances which were likely to have impinged upon his academic performance and explains, to some extent, his behavioural difficulties.

31. He apparently had major difficulties in the playground, apparently as a result of him “wanting to protect others”. His behaviour was also described as being unpredictable and threatening.

32. The report also noted the history of him having been sexually abused.

33. The subsequent report for the Beenleigh Special School some two years later in May of 1995 again referred to him as being mildly intellectually impaired, requiring a high level of support and an educational program that would be significantly different to the normal curriculum, and noted of course his history of behavioural problems within the educational system.

34. The Speech and Language Therapy Report, as a result of the assessment later that year in October 1995, when he was 12 years of age, indicated that in relation to his understanding of vocabulary concepts and grammar that his score was the equivalent of being between a five and a half and eight year old on all subtests.

35. The report includes the following summary:

“Adam presented with severely delayed language for his age and will require long-term support to develop his oral and written communication skills.”

36. The subsequent Summary for Ascertainment Intellectual in November 1995 continues to record the same difficulties as I have previously noted from the other reports.

37. The psychological report of Ms Lucas includes the following: the offender was born in Albury. He has one brother and two sisters. He and his siblings were prostituted out by their mother, in respect of the offender from about the age of four until the age of nine or ten when he was fostered into the care of Norma Morris. His biological father had been a drug addict and had not protected the children within the family.

38. His mother had re-partnered when the offender was four years of age which was when the abuse commenced, the stepfather being one of the abusers.

39. Eventually Family and Community Services stepped in when he was nine or ten and he was placed in the foster home, as referred to, of Ms Morris. Ms Morris’s letter to the Court contains information as to the number of biological children, stepchildren and foster children, grandchildren and great grandchildren that have been in her life. She is still apparently caring for two grandsons who have been in her care for 15 years and one of her grandson’s cousins.

40. She states in her letter,

“I have dedicated my life to raising children,” which appears to be an understatement.

41. She and her husband operated sideshows at carnivals.

42. She has had an ongoing relationship with the offender for many years since, up to the current date. Her letter includes the information that when the offender and his sister came into her care that DOCS’s officers told her that their mother and stepfather were under investigation for having sexually abused the children and neglected them.

43. Ms Morris had had some previous knowledge of the family and was aware that the children’s biological father was an alcoholic and that the rest of the family were “backwards”, that is, that they all had intellectual deficit problems. Despite that knowledge she agreed to take them into her care, and because of her inter-relationship on behalf of the children with the Brisbane police she is aware that the mother and stepfather received prison sentences and she became aware of what she refers to as:

“the horrific details of what was done to these poor children through the police, and Adam also told me a fair bit. From what I understand Adam’s mother and stepfather got paid for their daughter and son to be prostituted to random men.”

44. She refers to the offender:

“Adam was a very angry and frightened little boy when he came to me...Adam used to tell me that he had to have sex with men so that they could buy bread, milk and cigarettes. He told me that his mother and stepfather made him do it. He told me that this went on for a long time. He told me that he didn’t know the men.”

45. She speaks of his ingrained behaviour as a result of the lack of care and the abuse as a child that he had experienced. As to his education, because of the itinerant work-style of Ms Morris and her partner, the offender unfortunately had access to a number of different schools, but because of his intellectual disability he was placed in the Beenleigh Special School. She refers to him as never really achieving the basics in his education and being easily influenced by his friends who would take advantage of him.

46. Although she resides in Queensland, she is, as I have indicated, continuing to have contact with him throughout his life by telephone.

47. The offender clearly had a difficult and disruptive education. As to his employment, he has in the past worked at McDonald’s restaurants for work experience and otherwise assisted in carnival sideshow work and collected trolleys at Woolworths and cleaning dog kennels for a local council.

48. It would appear that on all occasions his employment has been, in effect, supported by supervision to assist him and he has been in receipt of a Disability Support Pension the whole of his adult life.

49. The letter from Yes Unlimited indicates that he currently receives support from that service as required in relation to his daily life.

50. As to any medical issues, apparently he suffers from Hepatitis C. He has previously been diagnosed with post-traumatic stress disorder and substance abuse induced psychosis as well as personality disorder, depression and anxiety. He has previously been in receipt of an opiate replacement therapy, that is, methadone.

51. He has had some association with the Albury Mental Health Service but his participation has been described as poor. He takes a number of current medications to assist him with agitation, depression and anxiety.

52. He was introduced to cannabis and alcohol during his teens by his peers and has used a range of prohibited substances, most recently methylamphetamine or ice. He has had a drug abuse problem spanning some 15 years.

53. He has had some psychiatric admissions in his twenties, and on testing as to his general intelligence he was found to be in the extremely low range, that is, when compared to individuals of similar age his function fell below 99.7%.

54. In relation to such matters as verbal comprehension, perceptual reasoning, working memory and processing speed, 97% or more of his peers performed better.

55. As to his commission of the offence, he advised Ms Lucas:

“He attended the residence of the victims in the company of some friends. On examination he noted that he had not known these friends for long although one co-accused was said to have been a neighbour. He provided a description which strongly suggested that he had not held a firm understanding of why his co-accused were going to visit the victims and he became caught up events as they unfolded. He advised that afterwards he panicked and made a false report to police because he was scared of what might happen to him...He described a naïve involvement in the offences, although he displayed a recognition that when his co-accuseds’ intentions had become clear he had not disengaged from the event. At the time of this assessment Mr John was able to outline that his involvement in the offence had been wrong and was able to provide the basic understanding of why his actions had been against the law and may have caused harm to the victims.”

56. Ms Lucas confirmed that he suffered from an intellectual development disorder and that his intellectual disability was of a mild severity. His limited reasoning and problem solving accompanied by his intellectual disability is compounded by his psychological problems, PTSD, intermittent psychosis, personality disorder, depression, anxiety and substance intoxication.

57. I note and accept that Ms Lucas also indicates that in a custodial situation, because of his intellectual and psychological disabilities, he would be a vulnerable inmate.

58. I am of the view that in relation to this matter, despite the offender’s lengthy criminal history, but in particular taking into account the objective seriousness of this offence and the fact that it falls at the lowest end of the scale, that the s 5 threshold has not been passed in relation to this offender.

59. He has required ongoing support throughout his life and will continue to do so. He is unlikely to improve, but with a significant level of continuing ongoing support, the risk of him reoffending in any like manner will be reduced.

60. I accept in this matter that the plea of guilty does reflect some degree of genuine remorse and contrition, particularly in the circumstances of his intellectual disability.

61. I note in respect of each of the co-offenders that there is no information before the Court in respect of either of them except that, as I understand it, each is defending the matter and they have not yet been dealt with.

62. In my view the community is better served in respect of this offender by ensuring that he has continuing support and counselling to assist him in his day-to-day life. Accordingly, I intend to deal with the matter by way of a Community Correction Order, and I have of course taken into account all of the matters to which I have referred.

63. The offender, in my view, has a significantly reduced moral culpability for the offending, both because of his intellectual disability and because of the hardships he has experienced in his life. I cannot say in the circumstances, considering his past record, that there is a low prospect of his re-offending, although as I have noted I believe that will be assisted with ongoing supervision.

64. I have, of course, also taken into account the fact that he was on conditional liberty at the time of the offending which is a significant aggravating circumstance.

65. As to the prospect of rehabilitation, in view of the matters that I have previously referred to, in my view that must be very guarded.

66. In respect of the offence of aggravated enter dwelling with intent knowing persons were there, the offender is convicted. Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act I order the offender to comply with a Community Correction Order for a period of 18 months commencing today.

67. The conditions to apply during the term of the order are as follows:

1. He is not to commit any offence.

2. He is to appear before the Court if called upon to do so at any time.

Those being the standard conditions.

68. As to additional conditions, he is to abstain from the consumption of prohibited drugs and he is to accept the supervision and guidance as well as the directions of Community Corrective Services for as long as the service deems necessary but not exceeding the term of the order. For that purpose, he is to obey all reasonable directions of the service to undertake examination, assessment, therapy, treatment, counselling or urinalysis whilst under that supervision.

I note, Mr John, that if you fail to comply with conditions of the order, that may result in further action being taken against you and require you to return to the Court to be resentenced.

For the purposes of the implementation of the order, you are to report to the officer in charge at the Albury Community Corrections Office by noon tomorrow.

Do you understand that? All right, Mr John, you will need to attend the office to get a copy of that, all right? Saturday’s tomorrow--

MENDES: Well, he’ll report today--

HIS HONOUR: He can report today by 4pm.

MENDES: --in person.

HIS HONOUR: All right, sorry. I forgot it was Friday.

MENDES: It didn’t occur to me either it was Saturday--

HIS HONOUR: All right.

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Decision last updated: 06 March 2020