R v John Barber

[2016] NSWDC 68

District Court

New South Wales

Medium Neutral Citation:	R v John Barber [2016] NSWDC 68
Hearing dates:	27 April 2016
Decision date:	06 May 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence For orders see [48]
Catchwords:	Sentencing; aggregate sentence; aggravated break, enter and steal and other offences
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985 Inclosed Lands Protection Act 1901 Road Transport Act 2013
Cases Cited:	JM v R [2014] NSWCCA 297 McIntosh v R [2015] NSWCCA 184 Pearce v R (1998) 194 CLR 610 R v Cahyadi (2007) 168 ACrimR 41 R v Caldwell [2016] NSWCCA 55 R v Rae [2009] NSWCCA 9 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) John Barber (Offender)
Representation:	Counsel: L Hanshaw (Crown) S Bouveng (Offender)   Solicitors:
File Number(s):	15/359741
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender was committed for sentence on 24 February 2016 from Wagga Wagga Local Court. He had pleaded guilty to three offences, namely:

1. Take and drive conveyance pursuant to s 154A(1)(a) of the Crimes Act 1900. This offence carries a maximum penalty of five years imprisonment.

2. Stalk/intimidate pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (“C(DPV)A”). This offence carries a maximum penalty of 5 years imprisonment.

3. Aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.

2. In addition, the offender had pleaded guilty to the following matters on a s 166 Certificate:

1. Drive manner dangerous pursuant to s 117(2) of the Road Transport Act 2013. The maximum penalty is 9 months imprisonment; automatic disqualification for 3 years, with minimum disqualification of 12 months.

2. Drive whilst disqualified (2nd subsequent offence) pursuant to s 54(1)(a) of the Road Transport Act 2013. Maximum penalty 2 years imprisonment; automatic disqualification of 2 years.

3. Enter enclosed lands (x 2) pursuant to s 4(1)(b) of the Inclosed Lands Protection Act 1901. Maximum penalty 5 penalty units.

4. Possess prohibited drug pursuant to s 10(1) of the Drug (Misuse and Trafficking) Act 1985. Maximum penalty of 2 years imprisonment.

Background to the offending

Offence 1; Take and drive conveyance without consent of owner

3. On 10 November 2015, the offender was given permission to borrow a motor vehicle registered number ZFW 501 from the owner, on proviso that he return the vehicle the next morning. He did not return the vehicle despite several requests to do so, and eventually the car was reported to the police as stolen on 3 December 2015. On 6 December 2015, the offender drove the vehicle from Wollongong to Wagga Wagga. At the time of this offence the accused was a disqualified driver, having been disqualified at Port Kembla Local Court on 26 August 2014 until 5 March 2022.

Offence 2; Stalk/intimidate with intent to cause fear of physical or mental harm

4. The offender and the complainant were previously in a domestic relationship which ended two and a half months prior to the subject offence. The complainant had moved to Wagga Wagga. She returned to Wollongong for her grandfather’s funeral, and the offender contends that she invited him to visit her in Wagga Wagga. On 7 December 2015 he contacted the complainant in the early hours of the morning by text message, telling her he was in Wagga Wagga. The complainant told the accused she would not meet him. She was staying at the time at a friend’s place, and at 6.30am on 7 December 2015 the offender arrived at the front of the premises where the complainant was staying and spoke to the owner. He became angry and started yelling at the owner, and then left. At 9.40am on the same day he returned to those premises and commenced yelling at the owner, saying words to the effect, “Come on jump the fence, you and me let’s fight, I’ll put you six feet under”, and he then said, “I’ll fucking shoot you with my bow”.

5. The complainant heard the yelling and recognised the offender’s voice. The offender’s conduct of tracking down the whereabouts of the complainant, attending the premises and threatening violence to her friend, constitutes the offence of stalking and/or intimidating with intent to cause fear of physical or mental harm. The offender knew his conduct was likely to cause the complainant fear.

Offence 3; Drive manner dangerous

Offence 4; Drive whilst disqualified

6. Police were alerted to the above incident and the threats made by the offender, and shortly thereafter sighted the offender at the intersection of Tarcutta and Edward Streets in Wagga Wagga. The offender, having observed the police vehicle, turned into a car park of a retail hardware store. The police vehicle activated its lights and the offender then accelerated rapidly through the car park, nearly colliding with several people and a heavy vehicle. The offender was then observed to drive towards Forest Hill at speeds in excess of 150kph in an 80kph zone. At one point, the offender crossed double unbroken lines to overtake two vehicles on a blind corner. The speed and manner of the offender’s driving posed a catastrophic risk to the public.

Offence 5; Entering inclosed land

7. The offender turned into premises on Brunskill Avenue, Forest Hill, and concealed the car by dragging some large sheets of metal across the back of the car, hiding it from view. He then ran through the backyard of the house and through the rear fence, which adjoins the Forest Hill Airport caravan park. The offender did not have permission from the owners or occupiers of the house to enter their property.

Offence 6; Possess prohibited drug

8. A short time afterwards, police investigators conducted an evidentiary search of the vehicle when it was located. Inside the vehicle they found a small amount of methylamphetamine, to which the offender later admitted ownership.

Offence 7; Enter inclosed lands

9. Once in the caravan park, the offender ran into a cabin and spoke to the occupant, telling him that he was running from the police and that he needed help. The occupant gave the offender a glass of water, and the offender then left the premises. At no stage did the occupier give the offender permission to enter his cabin.

Offence 8; Aggravated break, enter and steal knowing person’s home

10. The offender then ran to the residence adjoining the main office and entered through the front door, where he encountered the resident who lived in the premises with her husband and children. The offender stated “I need a phone charger, I need a shower”. The resident was frozen by fear and pointed to the bathroom. She then collected her three young children and ran into her mother‑in-law’s bedroom saying, “There’s a man in the house”. The offender appeared at the bedroom door where the women spoke to him, trying to keep him calm. Both were in fear of the offender and the resident feared also for the safety of her young children. The offender then stole a high visibility shirt belonging to the resident’s partner, which he put on and then said, “I need you to walk me to the bus stop, I will pay you”. This was an attempt to disguise his appearance to further evade the police. The resident was told to go outside and make sure the coast was clear. When she did that, she saw the police and informed them that the offender was inside the premises. The resident did not give the offender permission to enter her premises, nor did she give him permission to take her husband’s high visibility shirt. This was the conduct constituting the third offence, pursuant to s 112(2) of the Crimes Act.

11. The offender made full admissions to all offences, except that he claimed that he had permission to take the motor vehicle. He had been in custody since his arrest on 7 December 2015.

The sentence hearing

12. At the sentence hearing on 26 April 2016, the Crown tendered a Crown bundle which became Ex A. It included the criminal record and the custodial record of the offender. The offender’s criminal record included offences for driving unlicensed and speeding in April 2009, further offences in January 2011 for destroying or damaging property, refusing or failing to comply with a direction, offences in January 2013 of possessing prohibited drug (two counts) and custody of a knife in a public place. For all those offences, the penalties imposed were fines. On 5 March 2014, the offender was convicted at Albion Park Local Court of driving a motor vehicle whilst his licence was suspended as a first offence, for which he was fined and disqualified from driving for three months. On the same date, he was convicted of a further offence of custody of a knife in a public place and drive motor vehicle whilst licence suspended (second offence), for which fines were imposed, together with a disqualification from driving for 12 months.

13. On 13 August 2014, the offender was convicted at Port Kembla Local Court, in his absence, of two driving offences, driving motor vehicle during disqualification period (first offence), and operating vehicle so driving wheels undergo loss of traction. A warrant was issued.

14. On 26 August 2014, the offender was sentenced in relation to both those offences to a period of imprisonment for 12 months, which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. He was disqualified from driving for 2 years. On the same date, he was convicted of an offence of goods suspected stolen and pursuant to s 9, entered a bond to be of good behaviour for a period of 18 months. In committing each of the subject offences, he was in breach of that bond, and asked the court to deal with that breach by way of call-up, having admitted the breach.

The offender’s evidence

15. The offender tendered the following documents:

1. Report of Dr Richard Furst dated 16 April 2016 (Ex 1)

2. Letter from the offender’s mother, Catherine Barber, dated 26 April 2016 (Ex 2).

3. Letter from Ms Charmaine Ramsay (Ex 3).

4. Letter from the offender dated 5 February 2016 (Ex 4).

16. The report of Dr Furst dated 16 April 2016, set out the psychiatric history of the offender. After he left school, he worked for six years as a builder’s labourer until he was about 22 years of age. He was working with and living with his father, and at 22 years of age, they were subject to a violent home invasion which put him in fear of his life. He subsequently developed symptoms of anxiety, but otherwise has no psychiatric history. He had smoked cannabis from age 15 to age 22 years of age, and from age 23 had commenced to use methylamphetamine (ice). He stated that his use was due to the “crowd he was hanging around with”, and his use escalated to a daily addiction. He had not had any drug and alcohol rehabilitation.

17. At the time of the offending he was taking ice, and when he arrived in Wagga Wagga, expecting to meet up with the complainant, she told him she did not want to see him. That caused him distress and he could not understand why she did it to him.

18. Since being in custody from 7 December 2015, he had stopped using illicit drugs and had commenced anti-depressant medication, Avanza. He felt much better and now has a girlfriend who is supportive and whom he intends to marry.

19. Dr Pulley made a diagnosis of:

1. Substance Use Disorder (amphetamines, cannabis).

2. Post Traumatic Stress Disorder (PTSD).

20. In Dr Pulley’s opinion, the offender’s underlying PTSD and adjustment issues, he was experiencing at the time of the offending, probably contributed to his loss of emotional control and reckless behaviour. Further, his taking of ice, probably also led to his dis-inhibition and reckless/aggressive behaviour.

21. Dr Pulley recommended that should he receive a custodial sentence, that the offender remain under the care of a mental health nurse and see a psychiatrist working for Justice Health. He also recommended a treatment plan for his follow-up in the community following his release.

22. Dr Pulley was of the opinion that the offender had accepted his guilt and had expressed motivation to re-engage in the workforce, and stay away from illicit drugs. He had insight into his addiction issues and emotional problems.

23. Exhibits 2, 3 and 4 bespeak the support that the offender has within his family, both in terms of emotional support and providing him with a place to live upon his release from custody. The testimonials bear witness to the fact that the offender’s use of ice has greatly contributed to his criminogenic behaviour. They express some confidence in his ability to rehabilitate and to become a productive member of society once again.

24. The offender gave evidence that he was now aged 26 and was in custody for the first time. He was accompanied in court by his partner, with whom he was in a relationship prior to the events leading to his arrest. He had previously been in a relationship with the victim, and that relationship had been rekindled just prior to the offending. His purpose in travelling from Wollongong to Wagga Wagga was to visit the victim. He had, up until that time, been using ice for a period of two years, notwithstanding that he had maintained employment and worked in the building and construction industry doing formwork. When asked for an explanation as to how he came to use ice, he said he was with the wrong crowd. When asked if he remembered what happened with the police, he said, “It was a bit of a rush. I was a mess.”

25. When asked why he went into the premises, he said “I was only looking for help”. He appreciated that the woman in question was scared, and said that he himself was scared. When asked in respect of the dangerous driving charge, why he was driving so fast, his explanation was “I was a mess”. Since he had been incarcerated, he had ceased use of illicit drugs, and through exercise and training, had put on 18 kilograms. Further, he was now prescribed Avanza, which was assisting with his anxiety. On his release he intended to work and make it up to his family. He was prepared to undergo a mental care plan under his GP as recommended by Dr Furst, and prepared to apply himself to his rehabilitation.

26. In cross-examination, the offender admitted to using ice at the time of the offending. He had no recollection of overtaking two vehicles on a blind corner, nor nearly colliding with a heavy vehicle in the car park.

27. He accepted that the woman in her home was frightened by his conduct, but he was merely seeking help and wanted to avoid being arrested. That was the reason he took the high visibility jacket. He was aware, at the time of the offending, that he was disqualified from driving, and also that he was subjected to a bond to be of good behaviour pursuant to s 9 for a period of 18 months. He knew that he was not allowed to be driving. He understood now that driving, whilst affected by drugs, was very dangerous to other road users.

Crown submissions

28. The Crown submitted that the most serious offence here was the aggravated break, enter and steal, which carried a maximum 20 years imprisonment and a standard non-parole period of 5 years. In terms of objective seriousness, however, the drive in a manner dangerous and drive whilst disqualified would cause most concern.

29. The offences were committed whilst he was on conditional liberty and in breach of the s 9 Bond referred to. The Crown submitted that the mitigating features were that he had entered an early plea of guilty and was therefore entitled to a utilitarian discount on sentence. Further, there was no planning involved.

30. Aggravating features in respect of the intimidate charge included the threatened use of a weapon, namely a bow. In respect to the charge of drive in manner dangerous, that offence was carried out without regard to public safety and involved a grave risk of injury or death to other road users.

31. In respect of the aggravated break and enter, it was an aggravating feature that it occurred in the home. The offence was also committed in the presence of children under the age of 16 years, and there were three children present, all of whom complained of being fearful of the offender. The Crown submitted that only a full time custodial sentence was appropriate in all of the circumstances, having regard to the objective seriousness of the offence and the previous criminal history of the offender.

The offender’s submissions

32. The offender submitted that there should be a range of sentencing options available here. The most serious offence was the aggravated break, enter and steal, however, take and drive conveyance could have been dealt with in the Local Court. Similarly, the charge of intimidation pursuant to s 13.

33. It was submitted that the offender was drug dependent at the time of the offending, and that if, with appropriate rehabilitation, he can overcome his addiction, then he was unlikely to reoffend again. He had been in custody for five months and had not taken illicit drugs during that time. Further, he had the support of his mother and family, and his partner.

34. It was submitted on his behalf that a lengthy sentence of imprisonment suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”) would sufficiently reflect the purposes of sentencing set out in s 3A of the Act, and make him the author of his own redemption. It allowed the court to reflect the seriousness of the driving offences and the breach of his bond. He had already served 5 months in custody, and relevant to his sentencing, was his mental health and drug addiction.

Determination

35. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

36. The most serious offence here is the third offence of aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years, which must be taken into account as guideposts in the sentencing process. However, the section covers a wide range of conduct for such offences, and the objective seriousness of the offending conduct here, is below the mid-range of objective seriousness of offending pursuant to s 112(2) of that Act. However, it is still serious conduct. The offender acknowledged how scared the occupants of the house were. Further, it was an aggravating feature that the offences were committed whilst the offender was on conditional liberty and in breach of the s 9 Bonds referred to.

37. The offence of take and drive conveyance pursuant to s 154A(1)(a) of the Crimes Act was also within the lower end of the range of conduct for such offending.

38. The offence of stalk/intimidate pursuant to s 13(1) of the C(DPV)A, was aggravated by the threatened use of a weapon, namely, the offender’s bow.

39. Whilst the first and second offences might have been otherwise dealt with in the lower court, and therefore subject to lesser maximum penalties, the fact is that they were incidental to the third aggravated break, enter and steal offence pursuant to s 112(2) of the Crimes Act. In those circumstances, it is not appropriate to have regard to the sentences available in the Local Court – see Zreika v R [2012] NSWCCA 44 at [83].

40. Both general deterrence and specific deterrence are relevant here, notwithstanding the offender’s mental health issues. Again, whilst he has shown little remorse, the offender is now taking full responsibility for his offending criminal behaviour.

36. The offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate here, pursuant to s 5 of C(SP)A.

37. With respect to the question of accumulation in sentencing, there is no general rule as to concurrency and accumulation. The question is one of proportionality and totality, as set out by the High Court in Pearce v R (1998) 194 CLR 610 at [45]. As to totality, see also R v Cahyadi (2007) 168 ACrimR 41 and R v Caldwell [2016] NSWCCA 55.

38. Here, I make a finding of special circumstances pursuant to s 44(2) of the C(SP)A, based on the offender’s need to address his drug and alcohol rehabilitation. That finding means that the ratio between any non-parole period and the total term of imprisonment may be varied so as to provide the offender with greater supervision and rehabilitation to enable him to take a constructive role once again in the community.

39. This is an appropriate case to impose an aggregate sentence pursuant to s 53A of the Act. Section 53 and 53A provide as follows:

“S 53 Multiple sentences of imprisonment

(1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence.

(2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

S 53A Aggregate sentences of imprisonment

(1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following:

(a) The fact that an aggregate sentence is being imposed,

(b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation another offence.

(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.”

45. The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process – see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a standard non-parole period is prescribed – see McIntosh v R [2015] NSWCCA 184at [142], JM v R [2014] NSWCCA 297 at [8].

46. The indicative sentences that I would have imposed for each offence are as follows:

1. Take and drive conveyance pursuant to s 154A(1)(a) of the Crimes Act - 6 months imprisonment.

2. Stalk/intimidate pursuant to s 13(1) of the C(DPV)A – 6 months imprisonment.

3. Aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act – 2 years and 3 months imprisonment in total with a non-parole period of 15 months.

47. The indicative sentences are required to ensure transparency in the sentencing process. However, an aggregated sentence under s 53A must demonstrate some accumulation amongst the sentences involved – see R v Rae [2009] NSWCCA 9. For that reason, I intend to sentence you to a non-parole period of 1 year and 6 months to commence on 7 December 2015, and further term of 12 months imprisonment, a total term of 2 years and 6 months.

Orders

48. I make the following orders:

1. You are convicted of the following offences:

Take and drive conveyance pursuant to s 154A(1)(a) of the Crimes Act 1900.

Stalk/intimidate pursuant to s 13(1) of the C(DPV)A 2007.

Aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900.

2. In respect of all three offences I sentence to an aggregated sentence pursuant to s 53A of the C(SP) A to a non-parole period of 18 months commencing on 7 December 2015 and expiring on 6 June 2017.

3. The balance of sentence of imprisonment is for a period of 12 months from 7 June 2017 until 6 June 2018.

4. Total term of the sentence is 2 years and 6 months.

5. Your parole eligibility date will be 6 June 2017.

6. In respect of the call-up breach of the s 9 Bond, I take no further action pursuant to s 98(2)(a) of the C(SP)A.

7. In respect of the matters the subject of the s 166 Certificate:

1. Drive manner dangerous – 3 months imprisonment from 7/12/15. Disqualified from driving for 3 years.

2. Drive whilst disqualified – 3 months imprisonment from 7/12/15. Disqualified from driving for 2 years.

3. Enter inclosed lands – S 10A(1) – Conviction - No penalty

4. Possess prohibited drug – S 10A(1) – Conviction – No penalty.

8. Order pursuant to s 12 of the C(DPV)A that the conviction pursuant to s 13(1) is a domestic violence offence.

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Decision last updated: 10 May 2016