R v Kevin Doyle

[2016] NSWDC 66

District Court

New South Wales

Medium Neutral Citation:	R v Kevin Doyle [2016] NSWDC 66
Hearing dates:	28 April 2016
Decision date:	06 May 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence.  For orders see [43]
Catchwords:	Aggravated break and enter while armed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v R [2013] HCA 37 DPP v De La Rosa (2010) 79 NSWLR 1 Kennedy v R [2010] NSWCCA 260
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Kevin Doyle (Offender)
Representation:	Counsel: V Morgan (Crown) M King (offender)
File Number(s):	15/167960
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender was committed for sentence for an offence pursuant to s 112(2) of the Crimes Act 1900 of aggravated break and enter whilst armed The maximum penalty for the offence is 20 years imprisonment, and there is a standard non-parole period proscribed of 5 years.

2. In addition to the above charge, there is a s 166 Certificate in respect of an offence pursuant to s 195(1)(a) of the Crimes Act 1900, of destroy property, for which the maximum penalty is 2 years imprisonment.

3. The offender has been in custody since 6 June 2015, when he was arrested.

Circumstances of the offending

4. Exhibit A was the Crown bundle on sentence, and included a Statement of Facts which summarised the offending as follows. The victim was 77 years of age and was residing on her own in a single storey, semi-detached brick dwelling in Temora. She went to bed at 10.30pm on Friday 5 June 2015. At 1am on 6 June 2015, she heard the sound of a sliding door at the rear of the premises, and a short time later, her bedroom light was turned on and the victim saw the offender standing in her bedroom doorway. His face was covered with a blue and white covering with eye-slits, and he was holding a 15cm knife in his right hand, and was pointing it at her. The offender demanded money from her, then her credit cards, and PIN number. The offender ransacked the victim’s bedroom and the victim went into the lounge room and sat down, hiding her purse underneath a cushion upon which she was sitting. The offender told her to get up and he located the purse and removed its contents, a total of $65.00. Whilst asking for her PIN number, the offender motioned as if to kick the victim while she sat on the lounge. The offender continued to ransack the premises and remove two gold-coloured ladies watches, together with a box of Zydol SR150 medication.

5. The offender then left and the police were called. They obtained a description of the offender and, later that morning, located the offender at other premises in Temora, where he was in the possession of the stolen items and knife.

6. Exhibit A also contained the offender’s criminal history. It contained numerous Children’s Court offences from 2007 until 2010, involving common assault, destroying or damaging property, stalk, intimidate with intent to cause fear of physical and/or mental harm, possessing prohibited drugs, larceny, goods in personal custody, enter inclosed land, intimidate police officer, take and drive conveyance without consent of owner, unlicensed driver, resist officer in execution of duty and escape police custody, negligent driving, aggravated break and enter and commit serious indictable offence. From 2009, the offender had been convicted of offences in the Local Court, including resist officer in the execution of his duty, common assault, drive whilst disqualified, and enter building/land with intent to commit an indictable offence.

7. In 2010, the offender had been sentenced to imprisonment with a non-parole period of 3 months, and a total term of 12 months for assault occasioning actual bodily harm, with the same concurrent sentence for a common assault charge. On 4 February 2013, he was sentenced for an offence of resist officer in execution of duty, and sentenced to a s 9 Bond to be of good behaviour for 18 months. On the same day, he was convicted of break and enter house and was sentenced to a non-parole period of 7 months, with a total term of 12 months commencing on 11 December 2012. On the same day, he was convicted of take and drive conveyance without the consent of owner and sentenced to a concurrent sentence of 7 months commencing on 11 December 2012.

8. On 7 February 2013, he was sentenced to a period of 6 months imprisonment, commencing on 11 December 2012, for an offence of goods in personal custody suspected of being stolen.

9. On 6 November 2013, he was convicted of a further larceny offence for which he was sentenced to a non-parole period of 10 months, and a total term of 18 months imprisonment. A further offence of break and enter a house led to a sentence of the same magnitude to be served concurrently. On appeal to the District Court, both convictions were confirmed on 11 February 2014.

10. On 11 September 2014, the offender was convicted of a stalk/intimidate intend physical harm offence and sentenced to a period of 4 months, commencing on 14 July 2014.

11. The offender tendered a report from Dr Pulley, psychiatrist, dated 16 April 2016 (Ex 1). That report set out the offender’s past psychiatric history. He was diagnosed with a drug-induced psychosis at age 18, and developed paranoia and auditory hallucinations. In June 2015, he relapsed into drug use, but denied any subsequent drug use whilst he has been in custody following his arrest on 6 June 2015. He had used cannabis since the age of 12, and had been drinking heavily on a daily basis from the age of 17.

12. The offender also described difficulties with his childhood. His father was in and out of gaol and he has not seen him since he was aged one. His family moved several times when he was young, and he attended many schools and was often in trouble.

13. The offender acknowledged all aspects of the offences in question, but claimed that he had been heavily intoxicated with the use of alcohol and methamphetamine at the time. He regretted his actions.

14. Dr Pulley diagnosed chronic paranoid schizophrenia. He frequently denied symptoms to avoid safe cell conditions and Dr Pulley described that as a “plausible explanation”. According to Dr Pulley, the offender manifests heavy poly-substance abuse, with heavy harmful use of alcohol and methamphetamine, and past dependence on opiates and cannabis. His offending could be considered to be primarily motivated by a need for money to buy illicit substances. The offender gave an account of experiencing ongoing paranoia and hallucinations in the months leading up to the index events. In Dr Pulley’s opinion, it was unlikely that those symptoms would have resolved at the time of the offence. According to Dr Pulley:

“It is therefore likely that he was experiencing an exacerbation of his psychotic symptoms, including disorganisation of thought and behaviour, auditory hallucinations and persecutory delusions at the time of the alleged offences”.

15. His psychiatric functioning at the time of interview was impaired and he appeared to have ongoing persecutory delusions regarding other inmates, poverty of thought and cognitive slowing.

16. Dr Pulley set out a treatment plan for the offender which included continuation of psychiatric medications, education in respect of his psychotic illnesses, assistance in his return to the local community by mental health centre case management, psycho-education, vocational and psycho-social rehabilitation, and abstinence from the use of all illicit substances.

The Crown submissions

17. The Crown conceded that an early plea of guilty had been entered to the offence and therefore the offender was entitled to a 25% discount on sentence. An aggravating feature of the offence, pursuant to s 112(2), was that the offender was armed with a serrated knife. It was submitted that the offending fell within the mid-range of objective seriousness for an offence, given the following circumstances of aggravation:

1. The offending occurred at approximately 1am.

2. It occurred in residential premises.

3. It would have been obvious to the offender that there was a person in those premises.

4. That person was a 77 year old widower and therefore a vulnerable person.

18. Further, the offender pointed the knife at the throat of the victim, and later, when she was seated on a lounge within the premises, he kicked out in the direction of the victim, who was fully compliant with him during the whole course of the offending.

19. The Crown submitted that this offence was not out of character for the offender. Having regard to the prior criminal history, there were previous convictions for break and enter, aggravated break and enter, and property type offences.

20. The Crown submitted that general deterrence and specific deterrence were relevant to the sentencing process here.

21. In relation to the statutory aggravating features pursuant to s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”), the Crown relied on the following features:

(1)(b) The offence involved the threatened use of violence.

(c) The offence involved the actual use of a weapon.

(l) The victim was vulnerable.

22. The Crown further relied on the fact that it was in the home of the victim as an aggravating factor.

Submissions on behalf of the offender

23. Learned counsel for the offender conceded that the offending represented a serious example of offending pursuant to s 112(2), and conceded that it fell within the mid-range of objective seriousness for such an offence. That was an entirely proper concession for counsel to make.

24. Counsel also conceded the aggravating factors to the offending as outlined by the Crown.

25. It was clear from the report of Dr Pulley, that it was the use of illicit drugs that contributed to the offending.

26. Counsel submitted that the subjective case as recorded in the report of Dr Pulley, was relevant here. The personal history outlined in that report showed that the offender had no relationship with his father from a young age and although he was close to his mother, he and his mother were subjected to extreme domestic violence at the hands of a step-father. The family led an itinerant lifestyle and the offender commenced to use alcohol at 13 years of age, and by 17 years of age, was heavily consuming it. He had consumed cannabis from age 12 and therefore was entitled to some leniency on sentencing, having regard to having been exposed to a lifetime of deprivation, namely, domestic violence, abuse, and drug and alcohol abuse, relying on Kennedy v R [2010] NSWCCA 260 per Simpson J at [50] – [53], and Bugmy v R [2013] HCA 37.

27. Learned counsel also submitted that the offender had been diagnosed for the first time with chronic paranoid schizophrenia, as referred to by Dr Pulley. That diagnosis had never been made before, and Dr Pulley was of the opinion that he was suffering an exacerbation of his psychotic symptoms at the time of the offending. Therefore, in accordance with the principle in DPP v De La Rosa (2010) 79 NSWLR 1, general deterrence was a diminishing feature in the sentencing process.

28. Further, his diagnosis of chronic paranoid schizophrenia had made his time in custody harder. His custodial record showed that between June and October 2015, the offender had been moved on 10 occasions. Since October 2015, there were less moves, however, he had not assimilated well into the prison population. He had a constant fear of other inmates and was clearly a vulnerable person in custody because of his mental health issues.

29. Counsel submitted that the offender had a long term plan, namely, to move to South Australia upon his release from custody, where he had a brother and a daughter. He was now being medicated properly for his condition, however, on release he would need a considerable amount of support, including rehabilitation, warranting a finding pursuant to s 44(2) of the special circumstances.

30. Counsel also referred to statistics issued by the Judicial Commission of New South Wales in respect of the offences. It was conceded that those statistics demonstrated that a full time custodial sentence was warranted, however, the statistics demonstrated that a mid-point for the non-parole period for the offence was 18 months, and the mid-point for the total term for such offences was 36 months.

31. The Crown submitted that these statistics were of limited utility, particularly having regard to the aggravating circumstances which were not stipulated, and which are often merely that the offender is “in company”, which was not the case here.

Determination

32. 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.”

33. I find, as has been conceded by learned counsel for the offender, that the offending here fell within the mid-range of objective seriousness for an offence pursuant to s 112(2) of the Crimes Act 1900. The offender is entitled to a 25% discount on sentence for his early plea of guilty. However, he has demonstrated little remorse, although he did acknowledge to Dr Pulley that he considered himself responsible for the offending.

34. I have regard to what the High Court said in Veen v R No. 2 (1998) Vol 164 CLR 465 at 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

35. It is clear from his criminal record, which is lamentable, that the offender falls within the latter category described by the court, and he is not entitled to further leniency on the basis of that record.

36. The diagnosis made by Dr Pulley of chronic paranoid schizophrenia at the time of his interview of the offender is untested. The appellate authorities make it clear that the court should approach such untested evidence with caution. It is clear, however, from the behaviour of the offender during the course of criminal conduct, (when he was inside the victim’s home, for example, preparing himself a meal of frozen fish and water), he may have demonstrated psychotic symptoms. However, those symptoms were exacerbated profoundly by his use of illicit drugs, and therefore any diminishing of general deterrence as a relevant factor would be nominal.

37. I do accept, however, that the offender has suffered some hardship in carrying out his custodial sentence to date, however, he is now being medicated for his condition, and once he has been sentenced, I do not accept that those hardships should diminish any sentence imposed on him.

38. I am satisfied that no penalty other than imprisonment is appropriate in this case, having regard to the maximum penalty of 20 years and standard non-parole period of 5 years as guideposts in the sentencing process, and taking into account the subjective factors outlined above, together with the statutory aggravating factors relied on by the Crown.

39. Section 54A(2) of the Sentencing Act provides as follows:

“54A(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors effecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

40. Section 54B of the Sentencing Act was amended by the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 which commenced on 29 October 2013. It applies to offences committed before the Act commenced pursuant to clause 4 of sch 2. It provides as follows:

“54B Consideration of standard non-parole period in sentencing

(1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.

(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

(3) The court must make a record of its reasons for setting a non‑parole period that is longer or shorter than the standard non‑parole period and must identify in the record of its reasons each factor that it took into account.”

41. I make a finding of special circumstances pursuant to s 44(2) of the C(SP)A, having regard to the offender’s mental health and drug and alcohol abuse issues. He will require supervision of his lengthy rehabilitation back into the community. I have also had regard to the offender’s life-time of deprivation and the fact that such deprivation does not diminish over time and may be taken into account in sentencing over time.

42. I intend to sentence the offender to a non-parole period of 3 years with effect from 6 June 2015, together with a further term of 1 year and 6 months.

Orders

43. I make the following orders:

1. You are convicted of the offence pursuant to s 112(2) of the Crimes Act 1900.

2. I sentence you to a non-parole period of 3 years, to commence on 6 June 2015 and to expire on 5 June 2018.

3. I sentence you to an additional term of imprisonment of 1 year and 6 months to commence on 6 June 2018 and to expire on 5 December 2019.

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

5. I further note that the back-up charge on the S 166 Certificate of damage property pursuant to s 195(1)(a) of the Crimes Act, is withdrawn and dismissed.

44. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 10 May 2016