R v Lawrence

[2019] NSWDC 816

District Court

New South Wales

Medium Neutral Citation:	R v Lawrence [2019] NSWDC 816
Hearing dates:	8 November 2019
Decision date:	08 November 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 1 year 7 months. Non parole period of 4 months. For orders see [43]
Catchwords:	SENTENCING – Relevant factors on sentence – home invasion – in company – perceived grievance – did not walk away – flight – first offender – history of disadvantage – matter of four young children – pregnant – family hardship – gaol mother and children program – impact of removal of mothers from children considered.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Blackman and Walters v R [2001] NSWCCA 121 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Bugmy v The Queen (1990) 169 CLR 525 Dipangkear v R [2010] NSWCCA 156, at [34]. HJ v R [2014] NSWCCA 21 Hoskins v R [2016] NSWCCA 157 Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 Power v The Queen (1974) 131 CLR 623 R v De Simoni (1981) 147 CLR 383 R v Edwards (1996) 90 A Crim R 510 R v SLR (2000) 116 A Crim R 150 R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704
Texts Cited:	Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families Justice Health and Forensic Mental Health Network, Overview of Services, Page 14
Category:	Sentence
Parties:	Yaleela Lawrence (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr J Hibbard, Aboriginal Legal Service NSW/ACT Ltd (for the offender) Ms K McCrossin (for the Director of Public Prosecutions)
File Number(s):	2017/00220216

SENTENCE

“One of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help and the consequent escalation of violent vendettas between members of the community:” Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38, at [58]

Introduction

1. On 19 July 2018, tensions escalated in Griffin Street, Warrawong, a housing commission area commonly known as "Legoland".  Yaleela Lawrence resorted to self‑help in response to a perceived grievance.  As a consequence, she is in gaol awaiting sentence for an offence that carries a maximum penalty of 14 years' imprisonment.  One of her brothers spent months in gaol and another was on the run for many months.  A warrant for his arrest has just been executed.

2. Ms Lawrence has pleaded guilty to two offences; one on indictment. The principal offence is, enter dwelling with intent to commit a serious indictable offence of intimidation in company with others: s 112(2) Crimes Act 1900; maximum penalty 14 years' imprisonment. The second to be dealt with on a s 166 Criminal Procedure Act 1986 certificate, is a s 13 Crimes (Domestic and Personal Violence) Act 2007, offence of intimidation. It has a maximum penalty of five years but if dealt with in the Local Court, a limit of two years.

3. The law is quite clear and easily understood.  It is now appreciated by this offender as in her evidence today she put herself in the position of her former friend whose home was invaded.  You cannot enter the homes of others without their permission.  You cannot enter the homes of others and threaten them.  You cannot invite relatives to help you do so; and you certainly cannot stand by while relatives use machetes to hack down the door behind which a family is sheltering. So much should be obvious to all.

Agreed Facts

4. On 19 July 2018, Lawrence was at the home of her friend and neighbour, Ms Thoroughgood, in Warrawong.  While she was there she argued with Ms Thoroughgood's boyfriend, Mr Medley.  He wanted her to leave. She did not.  She said, "I'll get my brothers up here, you cunt".  She then sent a text message to her brothers. They arrived soon after carrying machetes or large knives.  They entered the home and went up the stairs towards Mr Medley.  Lawrence followed them.  Medley retreated into a bedroom and closed the door and held it closed.

5. Ms Thoroughgood was already in the room with one of her five children.  That child was aged 21 months.  The other children were in the next room.  Lawrence yelled, "Let's break it down".  The door was kicked.  The machete was used on it; it penetrated the door three times.  The door was forced off its hinges.  Medley then saw both brothers with machetes raised. 

6. Lawrence entered the bedroom.  Someone yelled, "The police are coming", and the brothers left the room.  Lawrence did not; she walked into the room. As she did so Ms Thoroughgood ran out with her child to her other children.  Medley climbed out the bedroom window onto a small edge.  Lawrence yelled at him, "I should push you off this roof, you white dog, junkie mother cunt".  The police arrived soon after and arrested both Lawrence and her brother Jeffrey.  The other brother had run away.

7. The agreed facts roll up those two matters. It is accepted that the intimidation offences involve the initial threat to Medley and the subsequent threat to Medley when he was on the roof.  I sentence according to the agreed facts but it is known to all the parties that I was the trial judge in Jeffrey Lawrence's trial and I had the benefit of seeing Mr Medley give evidence.

8. With all due respect to Mr Medley, he was not an impressive character.  I can well understand why Ms Lawrence was annoyed with him, but nothing he said or did justified what she did. 

9. I am also aware of the area in which she has grown up and lives with her young family. It is unfortunately one of the more, if not most, deprived in the Illawarra.  Many who live there have problems and require assistance.  I am also aware, and put on the record, that the evidence given of domestic violence specifically directed to Ms Lawrence by her former partner is a matter with which I am familiar. Her former partner appeared before me last year to appeal against a custodial sentence for a number of acts of domestic violence against. The appeal was ultimately withdrawn.

10. This offence was aggravated by being committed in company. The facts reveal that Lawrence may not have expected her brothers to be armed but she continued with the offence once it was obvious they were. While the particular of aggravation specified is being “in company.” That does not preclude me from taking into account another circumstance of aggravation in s105A Crimes Act 1900. That circumstance could not lead to a more serious offence being taken into account and offend the De Simoni principle: see R v De Simoni (1981) 147 CLR 383.

11. Lawrence told Ms Grainger of Community Corrections in the most recent Sentence Assessment Report that weapons were not involved.  That statement however was not adhered to before me.  I suspect all she meant was that she did not expect weapons to be involved.

Objective seriousness

12. It is important to note that previously Ms Lawrence was a very welcome guest in Ms Thoroughgood's home.  She was well aware that she lived there with her five children.  Whatever her perceived grievance with Mr Medley, she could and should have left rather than call her brothers.  She had the opportunity to retreat and go home.  There was no need to call for help. 

13. I am prepared to accept her brothers did not know what was happening or its extent before they attended. However, it must have soon been apparent to Lawrence that they were armed and she did not call them off.  In fact, she encouraged them.  What then occurred was nasty and violent. It was undoubtedly terrifying for all of the occupants of the room and the other children.

14. The threats and intimidation continued; the subject of the matter on the s 166 Criminal Procedure Act 1987, certificate.  Lawrence had reason to dislike Mr Medley; he had not shown her respect.  She believed he was not a good boyfriend for her friend but by her actions she subjected him and her friend and her children to a violent home invasion.

Guidance

15. While every offence and every offender requires individualised treatment courts must, in the exercise of their undoubted sentencing discretion, take guidance from a number of sources.  They include the maximum penalties prescribed by parliament and decisions of other courts, particularly those designed to give guidance and of course the purposes of sentencing which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition and vindication of the harm done to individual victims and the community and proper vindication of those victims.

Parity

16. Jeffrey Lawrence said he was not guilty to a similar s 112 Crimes Act offence.  On 5 November 2018, a jury acquitted him of that charge.  I was the trial judge.  The evidence against him appeared to me to be very strong. It may be the jury did not comprehend the Crown case or they may not have accepted Mr Medley or been merciful. I will never know. The jury exercised their undoubted prerogative to return a verdict of not guilty.  Following his acquittal, I convicted Jeffrey Lawrence of a related offence of intimidation.  I sentenced him to ten months' imprisonment with a four month non‑parole period.  Jeffrey Lawrence had an extensive criminal record and was on conditional release at the time. No issue of parity arises here.

Subjective case

17. Lawrence has no criminal history.  Although a document was tendered, s 15 Children (Criminal Proceedings) Act1987 makes that matter inadmissible in these proceedings.

18. Lawrence gave evidence before me.  She acknowledged in her evidence that considerable efforts had been made as the matter progressed to sentence to get her to help herself by engaging with psychologists, social workers, the Indigenous Assistance Officers of the Court and Community Corrections.  The failure of that attempt is set out in the Sentence Assessment Reports, which are part of exhibit A.

19. Lawrence did not cooperate with Community Corrections or those trying to help her.  She told me she was scared.  It is also clear to me that she could not face up to the seriousness of what she had done and the potential consequences to herself, perhaps understandably so.  But by denying the inevitable and not taking any of the help offered, she only made things worse.  Eventually, she failed to appear in Court and I had to issue an arrest warrant.  She was arrested on 19 July 2019 and has been in custody ever since.

20. A Sentence Assessment Report, dated 29 October 2019, is now available to me.  It indicates that Lawrence has her own Housing NSW tenancy and that she has close family support.  It indicates that she acknowledges her behaviour was impulsive and aggressive and that she was reacting to a perceived slight.  It appears that having spent time thinking about the matter while in custody, she now has some insight into harm caused and is particularly mindful of the impact on her former friend, Ms Thoroughgood, and the children.

21. She is, understandably, concerned about being separated from her own four children and concerned for her future child's wellbeing.  She is pregnant and is expecting her fifth child in March 2020.  The report concludes that she is motivated to address her anger management problems and that supervision is available in the community. It notes no other supervision conditions would be required as she has previously been a person of good character whose life since the age of 16, when she left school, was focussed almost entirely on her young family.

22. I am prepared to accept her evidence that she was herself the subject of domestic violence. That in turn influenced her reaction to the perceived slights directed at her by Mr Medley. Her perception is that he too was a perpetrator of domestic violence against her friend, but whatever the truth or otherwise of that belief, as I indicated at the commencement of these remarks, nothing justified of her taking effectively the law in her own hands.

23. Lawrence wrote a letter to me, in it she apologised to me for “mucking the Court around over many months.”  She says not turning up to Court was “silly;” and she ran away because she was scared.  She says, "I should have listened to my mother cause I wouldn't be in this mess in the first place.” They are very sensible words.  Her mother is here at court, as always, to support her. 

24. Lawrence says being in gaol for the first time is a “big eye opener” and that she has learnt important life lessons.  She is very concerned for her unborn child. She does not want that child born in custody; she wants her family with her.  Further, if she spends a significant time in custody she will lose her Housing NSW accommodation. Her house is the one stable thing that she has in her life, apart from her mother and her children.  Her mother presently has the burden of caring for the four children.  Housing NSW have still reserved the house for her.

25. Lawrence expresses appropriate regret to her family and the Court for her own actions.  She expresses appropriate empathy for the position she placed Ms Thoroughgood and her family in and acknowledges that if the same thing had happened to her, she would expecting the Court to treat the perpetrators very severely indeed.  She cannot extend those sentiments to Mr Medley, it would be wrong to pretend that she has any empathy, consideration or remorse for him.

26. The aggravating factors in this matter include the extent of the violence; the use of a weapon; the presence of children and that it was committed in a home.  The aggravating factor pleaded as an element is in company.  All of those matters generally lead to very significant custodial sentences. Here however there are a number of matters which can and should mitigate the sentence.  It was obviously unplanned and not organised.  She is a person of prior good character who has overcome a number of hardships in her life.

27. While I have no direct evidence today as to the community in which she grew up, I have enough indirect evidence having dealt with her brother, her former partner and others in that community, to understand that some of the matters referred to in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, must apply. Her moral culpability is not as high as someone who had all the advantages one would expect from our community. On the other hand, she is a smart and sensible woman who is capable of being a proper mother to her children. This leads me a consideration of family hardship and the degree of leniency that can be extended to a young mother.

Family Hardship

28. There is a general principle that hardship to family and dependants is unavoidable consequence of a custodial sentence and is not a mitigating consideration, unless such hardship is wholly, highly or truly exception: R v Edwards (1996) 90 A Crim R 510, at [515]; Hoskins v R [2016] NSWCCA 157 at [63]:

"Each case will depend on the seriousness of the crime whether there is a need for deterrence and the nature and degree of the impact of a sentence upon the third person; here, the family and the unborn child": Dipangkear v R [2010] NSWCCA 156, at [34].

29. The law is however not so heartless as to ignore the impact of a sentence on the mother of young children and a baby yet to be born.  The effect of separation from her four children on her, the effect of a separation on the children and the impact of having a child in custody are all hardships that should must be considered: HJ v R [2014] NSWCCA 21, at [76]: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23; R v SLR (2000) 116 A Crim R 150. Although Togias was a Commonwealth case, there was a reference there to articles 3.1, 9.1 and 9.4 of the United Nations Convention on the Rights of the Child 1989; they have relevance and are of guidance here.

30. I am aware that Corrective Services have a Mothers and Children's Program facility. I am aware from the material handed up that every effort will be made by them to provide comprehensive prenatal and antenatal care. 

Pregnant women are identified when they enter custody and a planned pathway is implemented with the aim of optimal care outcomes for mother and child. Antenatal and postnatal care is accessed through the Public Hospital system with all pregnant women attending the High Risk Pregnancy clinic’s to ensure appropriate management. Pregnant women are also reviewed on a regular basis by medical practitioners and the midwives to ensure continuity of care at the correctional centres.

An individualised management plan identifying requirements in terms of nursing follow up and review, medical officer review, external specialist (if applicable) and patient responsibilities is drafted in collaboration with the patient and other stakeholders. It will also identify what external medical appointments need to be facilitated in consultation with CSNSW: Exhibit B – Justice Health and Forensic Mental Health Network, Overview of Services, Page 14

31. There is a mothers and children's program facility, Jacaranda House, where mothers in custody can have their baby with them.  Accordingly, the simple fact that she is pregnant with a child should not preclude the imposition of a sentence of fulltime imprisonment, which would cover the period of time during which she is expected to have the child.

32. It is a shocking fact that Indigenous women make up 39.9% of the female prisoners in New South Wales. While I note that fact and I also note that in Bugmy the High Court of Australia rejected any suggestion that judges should take the high Indigenous imprisonment rate into account as a factor in sentencing.  This is a matter which requires legislative change.  While I would encourage such intervention I must apply what fell from the High Court.

33. Whether Indigenous or not the imprisonment of female offenders poses complex issues that often do not have simple solutions.  It is notorious that the impact of separation of Indigenous children from their families and communities has had an irrefutable impact.  The incarceration of Indigenous women, often the primary or sole carers, compounds the trauma.

34. Removal of women from the family can result in fracturing the family unit; can result sometimes in children being placed with elderly parents, sometimes with Family and Community Services.  Imprisonment can mean the loss of housing and without housing it is hard to put the family unit back together.  There is always an increased risk for children in such situations that they will end up in the child protection system and then potentially the criminal justice system.

35. Studies done in connection with the Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families found that the effects on children of separation from the primary carer can have serious long term consequences on those children's lives.  Separation of children from their primary caregiver at a young age can result in symptoms such as depression, trust and self‑worth issues and difficulties parenting their own children as a result of unresolved trauma and grief.  All of those matters require consideration in the synthesis of relevant factors.

Synthesis

36. How then to meet the purposes of sentencing? Lawrence needs to be made accountable for her actions and importantly what she did has to be denounced and the harm to her victims recognised.

37. Lawrence is a young Aboriginal woman with a background that requires a degree of sympathy.  She was not well equipped to make the decision that was expected of her; to put her anger aside and walk away.  She is a single mother raising four children and is now pregnant with her fifth.  I am satisfied that during the time on remand Lawrence was able to lead, as she had before this offence, a law abiding life.  She would, in my opinion, be unlikely to offend again, but others have to understand that the consequence of matters such as this will result in serious punishment.  She is not a threat to the community. 

36. The Crown's submission is quite simple; these are serious offences that call for fulltime custody.  I agree.  The sentence however can be formulated and structured in an individualised way.  The Court does not simply average out relevant considerations.  The community interest in restoring Ms Lawrence to her family is a significant factor. Further the rehabilitation of offenders particularly first offenders who have no settled criminal habits is a matter that should never be lost sight of: Blackman and Walters v R [2001] NSWCCA 121.

37. Mr Hibbard, for the offender, suggests that an Intensive Corrections Order could, after taking into account the time already served in gaol meet all the purposes of sentencing. He asks that Lawrence be released today.  I cannot do that. I have given that option careful consideration but a fulltime custodial sentence is required.  There will, however, be a lengthy period of parole in the community.  In fact, I would go so far as to say an extraordinary lengthy period of parole in the community.

38. I take into account the unlikelihood of Lawrence reoffending and the matters that I have referred to. While I the purposes of sentencing apply both to the head sentence and the non‑parole period this sentence’s non‑parole period has been adjusted to be the very minimum that reflects the gravity of the offence committed, having had regard to what fell from the Court of Criminal Appeal in Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704 and the High Court in Bugmy v The Queen (1990) 169 CLR 525 and Power v The Queen (1974) 131 CLR 623.

39. Addressing you directly Ms Lawrence: the effect of my sentence means that you will not be released today but you will be released before your child is due.  You will have to work hard over the next month or so with the prenatal people in Corrective Services to ensure that you have a smooth transition into the community.  You will also be under supervision on parole for a lengthy period of time.  If you commit any offence, you could end up back in gaol and the leniency extended to you today may never be repeated.

40. There was a plea of guilty, it came later but in the circumstances, as she was unrepresented on arraignment and as the matter was never listed for trial, I will allow a reduction of 20% of the otherwise appropriate sentence.

Orders

43. In relation to the matter on indictment, aggravated enter dwelling, you are convicted.  The sentence will be one year and seven months.

44. Taking into account a finding of special circumstances, I set a non-parole period of 4 months commencing 18 August 2019, the date you went into custody, and expiring 17 December 2020. There will be a parole period of 1 year 3 months to commence upon the expiration of the non-parole period on 18 December 2020 and expiring on 17 March 2021.

45. The total sentence therefore is 1 year 7 months, comprising the non-parole period and the balance of the sentence. To be released to parole at the expiration of the non-parole period.

46. In relation to the matter on the s 166 certificate, stalk/intimidate you are convicted. As the matters of fact so informed the principal offence and had they occurred independently of that offence, it is doubtful the s 5 threshold would have been crossed. I will deal with the matter by way of a Community Corrections Order for a period of two years from today's date. A Condition of that Community Corrections Order is that you accept the supervision of Community Corrections and that you engage with that service for as long as deemed necessary and accept any direction about anger management courses.

**********

Decision last updated: 24 February 2020