R v Leary; R v Williams

[2024] NSWDC 554

District Court

New South Wales

Medium Neutral Citation:

R v Leary; R v Williams [2024] NSWDC 554

Hearing dates:

18/9/24

Date of orders:

18/9/24

Decision date:

18 September 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

WILLIAMS:

Convicted and sentenced to an aggregate term of imprisonment of 1 years 8 months with a NPP of 13 months (6/10/23-5/11/24). I find special circumstances.

Indicatives (25 percent discount taken into account):

Seq 3 – 1 year 7 months (Form 1 taken into account).

Seq 4 – 10 months.

LEARY:

Convicted and sentenced to a term of imprisonment of 18 months with a NPP of 1 year (18/3/24-17/3/25). I find special circumstances.

Form 1 taken into account.

Catchwords:

Crime – Sentence – Use offensive weapon with intent to intimidate – Assault occasioning actual bodily harm

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

CDPP v De La Rosa [2010] NSWCCA 194

R v De Simoni [1981] HCA 31

Category:

Sentence

Parties:

NSW DPP – Crown
Cameron Charles Leary – Offender
Eleyah Williams - Offender

Representation:

Ms Hwang for Crown
Mr Voros for Leary
Mr Skinner for Williams

File Number(s):

23/217838, 23/217851

remarks on sentence

1. The offenders, Ms Eleyah Williams and Mr Cameron Leary are before the Court for sentence.

2. Ms Williams, in relation to two offences, firstly an offence of using an offensive weapon with intent to commit an indictable offence of intimidation, that being an offence under s 33B(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 12 years imprisonment. Also, in sentencing for that offence, she asks that I take into account an offence of larceny, which is on a Form 1 document, and I will do that. Secondly, she is to be sentenced for an offence of assault occasioning actual bodily harm under s 59(1) of the Crimes Act, which carries a maximum penalty of five years’ imprisonment.

3. Mr Leary, however, is to be sentenced in relation only to one offence, that being the use of an offensive weapon with intent to commit an indictable offence of intimidation. The maximum penalty for that offence, as I have said, is 12 years’ imprisonment. And he asks that in sentencing him for that offence, I take into account, on a Form 1 document, an offence of larceny, and I will take that course.

4. The maximum penalty for the relevant offences is, of course, an important guidepost in the sentencing exercise, to which I have had appropriate regard.

5. Each of the offenders pleaded guilty at the earliest opportunity, and, therefore, are entitled to and will be given a 25% discount, by reason of the utilitarian value of those pleas of guilty.

FACTS

6. The facts are agreed in each case, and are in summary as follows. The offender, Ms Williams, and Mr Leary, the co-offender, had been in a relationship, and the victim of the offences in this matter was in a relationship with Ms Williams immediately prior to the offences in question. The victim, Mr Agius, was at the relevant time living at Unit 9 at the Plumpton Inn, and Ms Williams had been residing with him there shortly before the offences took place. The victim owns a service dog, which is a large mastiff, and rejoices in the name of Satan.

7. In the early hours of the morning of 7 July 2023, the victim noticed that Ms Williams was, “popping Xanies”, namely, the drug with the brand name Xanax, which is a substance known as alprazolam. As a result, the victim told Ms Williams to leave the unit, because he did not want to be around her while she was under the influence of that drug. She left the Plumpton Inn between about 3.00 and 4.00am that morning. After that, the victim started to get phone calls from Ms Williams, telling him that she was going to come and get her belongings.

8. At the time, Ms Williams was in the presence of Mr Leary. The victim told Ms Williams that she was not welcome to come back, and suggested that Mr Leary come and collect her belongings, suggesting that that would be a lot more civil. The victim spoke to Leary over the phone, and requested that he come and collect Williams’ belongings. However, Mr Leary was somewhat abusive and threatening in that phone call, although it is not suggested that Ms Williams was privy to that part of the conversation.

9. The facts, then, relate to a number of events that occurred just before 8am on that morning, when Ms Williams, Mr Leary, and a third male, who has not been identified, arrived at the Plumpton Inn in a Holden Commodore. The victim stood at the door of the unit where he lived, with Ms Williams’ belongings, those being apparently, at that time, a hair straightener and a pair of shoes. He called out to the three persons, and told them that he was not leaving the unit, and that one of them could come and get Ms Williams’ belongings. However, the three of them got out of the Commodore and approached the victim at the door of the unit. I note that these events outside the unit were captured on CCTV, stills from which have been inserted into the agreed facts.

10. As Ms Williams approached the door, the victim attempted to hand to her some belongings of hers. The facts note that, “Satan appears at the doorway momentarily”, which causes the victim to bend down and grab hold of his harness. Ms Williams, however, did not attempt to take her belongings, and, rather, pushed the victim into the apartment instead. At that point, both Mr Leary and the unknown male quickly approached the door, and Ms Williams grabbed the victim by his hair, and began to strike him to the side of the head.

11. The victim called out to Mr Leary to intervene, and Leary attempted to enter the unit. However, Satan lunged in his direction, which caused Mr Leary and the unknown male to move away from the door. The victim then attempted to restrain the dog, whilst trying to defend himself from Ms Williams’ attacks. At that point, Ms Williams produced a knife, which had a blade of approximately 16 centimetres in length, and she swung the knife initially at the dog, Satan. However, the victim moved Satan from her reach.

12. Ms Williams then swung the knife towards the victim’s face, which caused him to put out his arm to protect himself. At that point, the victim’s left forearm was struck by the back of the blade of the knife which Ms Williams was swinging, and, as a result, the victim sustained a small laceration to his forearm. The victim then, as noted in the facts, sprayed Ms Williams in the face with a can of Mortein insect spray, in an attempt to stop her from attacking him and Satan. Ms Williams then picked up the victim’s phone and a vape, which belonged to him, and at that point, Mr Leary approached the door to the unit and produced a small metal baseball bat, which he had previously had concealed inside his jacket.

13. After that, and this is also depicted in the stills from the CCTV, Mr Leary briefly entered the unit - the victim’s unit that is, and re-emerged carrying the victim’s phone. The victim then pushed Ms Williams from the unit, which caused her to fall over some plants that were outside the door, and CCTV depicted her holding a knife in her hand at the point where she got back up again. She then - that is, Ms Williams, then approached the door again, and pointed the knife at the victim briefly, before walking towards the car with Mr Leary.

14. Shortly after this, she got out briefly from the car and again approached the victim, who was standing at the door of the unit, and she could be seen to be yelling at him from some distance, before getting back into the Holden Commodore. The victim then walked towards the vehicle, holding onto Satan’s harness, and at that point, he asked Mr Leary to give him back his phone, but Leary told the victim that they did not have the phone, and at that point, the Commodore with the three people inside drove away.

15. Later that same evening, Ms Williams attended the Mount Druitt police station, where she was required to attend due to a bail condition that she was then subject to. It was while she was there that she was arrested on the allegations that I have just summarised, and when she was searched, the police found in her bag the victim’s mobile phone and a vaping device. She was asked by one of the police how it was that she was in possession of the victim’s phone, and she - told police that he had come to her house that day, which was obviously untrue. Mr Leary was arrested later that same evening when police went to his residence in Whalan, although he initially escaped from police by jumping a back fence. However, he was, with the assistance of a police dog handler, subsequently found and arrested.

16. Ms Williams engaged in an interview with police, which is, in part, extracted in the facts. However, it is not necessary for me to recite all those matters. Suffice to say, she gave a version, which, in part, was untrue about what had happened that day. She told police that she had gone to the Plumpton Inn to collect her things and clothes, and that whilst in the room, the victim had attempted to get Satan to bite her, and she told police that she was not sure if she had picked up the victim’s phone intentionally, or accidentally. She also alleged in her interview that the victim had placed his hands around her throat, which had restricted her breathing.

17. However, upon being shown some CCTV footage from the Plumpton Inn, she agreed that she was one of the people depicted in the footage, and that Mr Leary was another. She, however, disagreed that she was holding a knife, and claimed she was holding scissors. However, she did eventually concede in her interview that Mr Leary could have given her a knife, but she did not recall producing one.

18. I note that in reciting that part of the interview, I do not take into account, against Mr Leary, any suggestion that it was he who provided the knife. Fundamentally, because the version given by Ms Williams in her police interview is obviously, in many, respects unreliable. She did, however, say that in her interview she was disgusted with herself, and she just wanted to hug the victim, and say she was sorry to the police that she had consumed methamphetamine on the day of the offences.

19. Mr Leary also gave a police interview, and some short extracts from that are contained in the agreed facts. Relevantly, he said he was unable to recall if he had driven the Commodore to the Plumpton Inn, and claimed that he had been subject to a drug psychosis for the last six days. He did, however, refer to Ms Williams, and described her as, “His soul mate and that” and said that they had a, “special connection-type thing”. His Holden Commodore was searched, and inside the glove box there was found to be a knife, which is consistent with the knife seen in Ms Williams’ hand in the CCTV.

20. Those, in essence, are the facts in summary.

OBJECTIVE SERIOUSNESS

21. I turn, then, to consider the objective seriousness of the offences, starting with Ms Williams. Ms Williams is to be sentenced for two offences, and it is, therefore, necessary that I make an assessment of the relative seriousness of each of them. The sequence 3 offence of using an offensive weapon with intent to commit the indictable offence of intimidation carries, as I have said, a maximum penalty of 12 years’ imprisonment. This marks it as potentially of some seriousness. The offensive weapon involved a knife, which was capable, obviously, of inflicting serious harm or death, and would clearly have been very intimidating to the victim.

22. The offence was made more intimidating by reason that, when the offender approached the victim, she was in the company of two others, one of whom produced a baseball bat at one stage. The offence also took place in the home of the victim, where he was entitled to be, and feel, safe from attack. On the other hand, the offence occurred over a relatively brief period of time, and it did not involve significant planning or any sophistication, and did not result in harm that can be described as substantial. In my view, that offence was one that lies slightly below the mid-range of objective seriousness.

23. The sequence 4 offence of assault occasioning actual bodily harm carries a maximum penalty of five years’ imprisonment. The form of actual bodily harm in this case was a laceration to the victim’s arm. It was agreed, however, in the sentencing hearing today that this was not a laceration that would constitute a “wound”. I have taken care, as was agreed in the hearing this morning, not to treat this injury as a wound, because to do so might involve an R v De Simoni [1981] HCA 31 error. The actual bodily harm, therefore, was fairly slight.

24. However, it was, again, an offence that occurred in the company of others, and in the victim’s home. The offence was brief, however, and involved no sophistication, or any significant planning. Also, there is no evidence that any injury or harm was substantial. I regard this as an offence that is towards, but not within, the lower range of objective seriousness.

25. In terms of aggravating matters in Ms Williams’ case, there is the fact that she was on conditional liberty at the time. This does not increase the seriousness of either offence, but it does underscore some of the important sentencing principles, such as personal deterrence, denunciation, and the need to make the offender accountable for her actions.

26. Turning then to the objective seriousness of the offence committed by Mr Leary. As I have said, he is to be sentenced for the single offence of using an offensive weapon with intent to commit an indictable offence of intimidation. It has been agreed that he was party to a joint criminal enterprise with Ms Williams to intimidate the victim. In other words, that they were both party to such a joint criminal enterprise, and that this occurred by means of the offender, Mr Leary, being armed with a small baseball bat, while Ms Williams was armed with a knife.

27. The nature of the weapons, and the fact that the offender was in the company of two others, renders his offence all the more intimidating and serious than it otherwise would have been. The offence also occurred in the home of the victim. Of course, this offender is not to be held accountable for the assault committed by Ms Williams, or the actual bodily harm that resulted from it. I also note that the offender did not swing the baseball bat at the victim, or hit him at any stage.

28. I accept, further, that the offence was lacking in sophistication, or any significant planning. Also, while this would have been a terrifying experience for the victim, I accept that there is no evidence that any harm was substantial. I regard this offence as being well above the low range, but somewhat below the mid-range of objective seriousness.

29. In terms of aggravating matters, like his co-offender, Mr Leary was subject to conditional liberty at the time. As I have said, this does not increase the seriousness of the offence, but it does underscore important matters such as personal deterrence, denunciation, and the need to make the offender accountable for his actions.

SUBJECTIVE MATTERS - WILLIAMS

30. I turn, then, to subjective matters, starting first with Ms Williams. She is now aged 25, and is partly of Aboriginal descent. Her criminal history, which consists of numerous offences of violence, drug possession, and an offence of having a knife in a public place, does not assist her. Her subjective case has been placed before the Court by means of a volume of written material. The psychological report of Susan Hawil notes that the offender reported an unstable upbringing, in which her parents abused drugs, and where she was witness to significant domestic violence committed by her father upon her mother. These matters, she told the psychologist, impacted significantly upon her mother’s mental health, which led to the mother making suicide attempts.

31. The offender said that she was also, herself, a victim of her father’s violence, and that this included having her teeth broken when she was only eight, and the violence escalated during her teen years. The offender, Ms Williams, reported that, as a result of the family environment, she at times lived with her grandmother, and at other times with her mother and siblings in shelters, so as to avoid her father’s violence. The offender reported having problems in complying with expectations of schools, as to her behaviour. However, she did attain her Year 10 certificate. Since leaving school, the offender has had a history of some employment, although it does not appear that this has been regular. The offender has been in a number of intimate relationships since about the age of 17. However, these appear to have been characterised by domestic violence, controlling behaviour by the males, and drug abuse.

32. The offender told the psychologist that her most recent relationship was with the victim of the offences before the Court, who she said she had been staying with at the Plumpton Inn, and with whom she said she had been using illicit drugs. She also claimed that this relationship was domestically abusive, and that she had suffered significant injuries at the hands of this man. She reported a long history of drug use, dating back to when she was about 12 years of age. In more recent years, this had involved her heavy use of ice, and also Xanax and other drugs.

33. She has a history of attending Marrin Weejali Aboriginal Corporation in 2022, while subject to an Intensive Correction Order. Of more recent times, the offender reported having participated in a number of programs in custody, including programs to address her drug use issues. The psychological report makes reference to a selection of hospital records, which indicate that the offender has been subject to, and or admitted to, hospitals on numerous occasions between 2021 and 2023, due to concerns about her mental health, including self-harm, erratic behaviour, and aggression towards others.

34. The psychologist reached the conclusion that the offender meets the diagnosis for Post-Traumatic Stress Disorder, which appears to be based on abusive and traumatic events in her childhood, as well as various other stresses and trauma to which she has been subjected in more recent years. Furthermore, the psychologist concluded that the offender also meets the criteria for Major Depressive Disorder, Substance Abuse Disorders, and Borderline Personality Disorder. I accept that the existence of these mental health problems will have rendered her experience in custody, and any further period of custody, more difficult. In that regard, I cite the well-known principles referred to in CDPP v De La Rosa [2010] NSWCCA 194.

35. The offender told the psychologist that, in the lead-up to the offences, she had been staying with her partner, that is the victim, at the Plumpton Inn, and that she had been subjected to various forms of domestic violence and accusations from the victim. She said it was in this context that she attended the Plumpton Inn with others in order to retrieve her belongings, and that she had a knife with her because she was frightened of the victim. She added, however, that she was “blacked out” on Xanax, and had also recently consumed a lot of ice, and did not know why she had taken the victim’s phone.

36. I have no doubt that the offender’s use of drugs around the time of the offences contributed in a material way to what happened. Committing offences while high on drugs, however, is no excuse, and it is a common feature of many offences that come before this Court. I also accept that it is likely the offender had previously experienced abuse or violence at the hands of the victim, and that this was, in part, why she had left some of her belongings at his premises. Nonetheless, it seems to me that her offending, especially given that she attended with a knife and two other persons, was aimed at revenge, rather than simply being an attempt to get her property back.

BUGMY

37. Having regard to the background set out in the psychological report, I accept that the offender’s background, especially as a child, was one of significant instability, deprivation, and trauma. In my view, it is a background that reduces the offender’s moral culpability to a significant degree, because it made her more prone to getting involved in drugs, entering relationships with abusive partners, and making bad decisions, such as those that bring her here today. In referring to the moral culpability being reduced to a significant degree, of course, I am referencing the principles discussed in Bugmy v The Queen [2013] HCA 37, and other cases that have discussed similar principles, including the New South Wales Court of Criminal Appeal decision in R v Millwood [2012] NSWCCA 2.

REMORSE AND REHABILITATION

38. Turning to questions of remorse in Ms Williams’ case. While she did not give evidence on the sentence hearing today, I accept that there is genuine remorse in her case. This is displayed in her letter to the Court, and in her comments to the psychologist.

39. In relation to her prospects of rehabilitation and her future risk, I make the following findings. The psychologist notes that the offender, Ms Williams, falls within the medium-high risk of re-offending. On the other hand, the sentencing assessment report suggests a medium risk.

40. There are, however, some positive indicators that the offender wishes to better herself, stay off drugs, and remain out of jail. This comes from the fact that she has applied herself, while in custody, to the completion of a number of programs and courses, and has engaged in counselling. While these matters are positive, and while the offender has expressed the wish not to re-offend, it would be unrealistic to suggest that this will be an easy path for her, especially given her various psychological diagnoses. In my view, she remains a risk of re-offending, and I regard her prospects of rehabilitation as reasonable but guarded.

SUBJECTIVE MATTERS - LEARY

41. Turning, then, to subjective matters relating to Mr Leary. Mr Leary is a man of part Aboriginal background, and is now aged 26. The Court has received a volume of written material relating to his circumstances. The psychological report of Dr Kim Dilati states that the offender had a difficult childhood marked by domestic violence, physical and verbal abuse, family dysfunction and drug abuse, financial hardship, accommodation problems, and other issues. The offender reported also to the psychologist that he experienced sexual abuse by a family member, although he provided no details about this.

42. The offender also reported problems at school and reported being diagnosed with Conduct Disorder, Oppositional Defiance Disorder, and possibly Attention Deficit Hyperactivity Disorder. He did, however, complete the equivalent of year 10. Since leaving school, he has experienced other traumatic events, but has had a history of some useful employment. According to the psychological report, his employment history and his life, generally, have been affected by a long-standing problem with abusing various drugs, which commenced with cannabis when he was only 10.

43. He reported that in the lead-up to the offence and at the time of the offence, he was using heroin and methylamphetamine regularly, and was affected by drugs at the time of offending. While this provides some context, it does not, of course, involve a mitigating factor. The psychological report notes that the offender has a fairly unremarkable relationship history. Relevantly, however, he was in a relationship with the co-offender, Ms Williams, for about four months in 2020.

44. The psychologist concluded that the offender meets the diagnosis for stimulant and Opioid Use Disorder, generalised Anxiety Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and also has obsessive-compulsive traits. The psychologist further states that the offender was affected by these conditions at the time of the offence, and that they likely impaired his judgment and significantly influenced his behaviour at that time. The Crown submitted that there were aspects of the psychological report to which less weight should be attached, given the relative lack of specificity about the circumstances of the offender’s childhood and various psychological diagnoses said to have been made in his past. There is also the fact that no evidence was given by the offender in the hearing today.

45. I take these aspects into account as they do reduce, to some degree, the weight that I attach to the report. Nonetheless, I attach sufficient weight to the report to the extent that I am prepared to accept that the offender’s childhood and early adolescence was characterised by drugs, aggression, domestic violence, and general instability and hardship. I also accept that the offender’s time in custody has been made, and will continue to be made, more difficult by reason of the mental health issues which are described in the psychological report.

BUGMY

46. Having regard to the offender’s history, while the evidence is not sufficient to establish that he has been subject to “profound” deprivation as a child, in the sense referred to in both Bugmy v The Queen and in cases such as R v Millwood, there is no bright line test to identify such cases. Suffice to say that I accept that the offender’s background is such that he had a diminished capacity to make wise choices, to control his impulses, and to think through the consequences of his actions. Having regard to these matters, I think his moral culpability is, to some extent, reduced.

REMORSE AND REHABILITATION

47. Turning to questions of remorse in his case, the psychological report notes that the offender accepted responsibility for his offending and expressed regret for having become involved. I therefore accept that there is some remorse in this case. In relation to prospects of rehabilitation and risk, I make the following observations and findings: the psychological report suggests that because of the offender’s history of drug problems and offending, as well as, I assume, his mental health diagnoses, he remains a substantial risk of re offending unless and until his underlying issues are addressed. I agree with this analysis, and it does seem to me that he does remain a substantial risk of re-offending. His prospects of rehabilitation cannot really be described as anything better than guarded.

DETERMINATION - WILLIAMS

48. Turning then to my final determination in relation to each case. Firstly, I am satisfied for the purposes of s 5 of the Crimes (Sentencing Procedure) Act 1999 that no penalty other than imprisonment is appropriate in each case.

49. In determining the ultimate sentences to be imposed in each case, I have had regard to parity principles and the importance of avoiding imposing a sentence on either offender which, because of its leniency or its severity, might create a legitimate sense of grievance by reason of unfair or unequal treatment. Having said that, the circumstances of these two offenders, including their subjective circumstances and the nature of their offending, are not the same. Most particularly, there is the fact that Ms Williams had a greater role in the events and is to be sentenced for two offences. On the other hand, her subjective circumstances are slightly more favourable, and Mr Leary has a more serious criminal background. I have attempted to balance these and the various other matters to which I have referred.

50. In Ms Williams’s case, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, which I do not intend to set out. It seems to me that they are all important. However, I accept that the importance of general deterrence is reduced to a material degree in her case by reason of her deprived and disturbed background. As I noted earlier, there is a Form 1 offence to be taken into account, which involved the stealing of the victim’s mobile phone. As this was a discrete act, somewhat separate to the intimidation and the assault, it should in my view operate so as to increase slightly the indicative sentence for the sequence 3 offence because of the need for personal deterrence and community retribution.

TOTALITY AND ACCUMULATION

51. I intend to impose an aggregate sentence in Ms Williams’s case. Given that the aggregate sentence will encompass both offences, I have had regard to totality principles. That is, the question of to what extent there should be any notional accumulation. In my view, there is a need for some notional accumulation so as to acknowledge the two crimes, but the accumulation should not be great. I come to that view because the two offences were effectively committed during a single incident, and there is a large degree of overlap between them. Because I am imposing an aggregate sentence in her case, it is necessary that I set out the indicative sentences which would otherwise have been imposed. I will do that now.

52. Ms Williams, you should note that these are what are called indicative sentences. They are not the ultimate sentence, and I will make that clear in a moment. The indicative sentences are as follows: For sequence 3, that being the use offensive weapon with intent to intimidate offence, and after the 25% discount for the plea of guilty, and taking into account the matter on the Form 1 document, the indicative term is one year and seven months’ imprisonment. For the sequence 4 offence of assault occasioning actual bodily harm, taking into account the 25% discount for the plea of guilty, the indicative sentence is 10 months’ imprisonment. I impose in her case an aggregate head sentence of one year and eight months. I impose a non-parole period of 13 months.

53. As is obvious from that non-parole period, I have made a finding of special circumstances. That is based on a number of factors: firstly, her mental health conditions, and also the need for a reasonably substantial period on parole supervision. Given the head sentence that I have imposed, I have given consideration to the question of whether that sentence should be served by full-time custody or whether it is appropriate for it to be served by Intensive Correction Order in the community. In making that determination, of course, I am conscious of the fact that community safety is the paramount consideration.

54. In my view, however, the sentence ought to be served by a term of full-time custody. I reach this conclusion because the offender’s criminal history involves similar types of offending, as well as the fact that the offences before the Court were committed while she was subject to conditional liberty in the form of an ICO and bail. In my view, personal deterrence and the protection of the community require a term of full-time imprisonment. Also, the significant element of leniency involved in an ICO, especially given that she has received this leniency in the past, would be inconsistent with the need to impose an adequate penalty.

55. I have given consideration to the question of backdating of her sentence. The offender committed these offences on 7 July 2023. She was on an Intensive Correction Order at that time, which was subsequently revoked and resulted in her spending one month and 25 days in custody from 7 July 2023 to 31 August 2023. Her time in custody to date has also been, in part, due to sentences for other offences committed around the same time as those before the Court today. In considering the backdating question, I have had regard to totality and proportionality, and the likelihood that a degree of concurrency would probably have been appropriate if the offences now before the Court had been dealt with at the same time as the sentences imposed in the Local Court on 4 October 2023. She has been in custody solely by reason of the offences now before this Court since 6 November 2023. In my view, it is appropriate to order some degree of backdating by reason of the matters to which I have just made reference. The sentence therefore will date from 6 October 2023. The head sentence will expire on 5 June 2025. The non-parole period will expire on 5 November 2024.

DETERMINATION - LEARY

56. Turning then to Mr Leary. Again I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. All of those purposes, which I do not intend to recite, are important in his case. Having said that, however, I think the importance of general deterrence is reduced to some degree due to his background and his somewhat reduced moral culpability, although not to the same degree as in Ms Williams’s case.

57. I am satisfied that, for the purposes of s 5 of that Act, that no penalty other than imprisonment is appropriate.

58. In his case, I impose a head sentence, after the plea of guilty discount and taking into account the matter on the Form 1, a head sentence of one year and six months’ imprisonment. I impose a non parole period of one year.

59. As is obvious from those figures, I have made a finding of special circumstances. This is based upon the offender’s mental health issues, the potential risk of institutionalisation, and the need for him to be subject to supervision for a reasonable period after he is released to parole. Again, in his case, I have given consideration to whether that sentence should be served by full-time custody or by means of an Intensive Correction Order in the community. As I have already said, in making that decision, community safety is the paramount consideration.

60. In my view, however, the sentence ought to be served by a term of full-time custody. I reach that conclusion because the offender’s criminal history involves similar types of offending, as well as the fact that the offences before the Court were committed while he was on parole. Personal deterrence and the protection of the community require a term of full-time imprisonment. Also, the significant element of leniency involved in an ICO, especially given that he has received similar forms of leniency in the past, would be, in my view, inconsistent with the imposition of an adequate penalty.

61. In giving consideration to the date upon which that sentence should commence, I note that the offender, Mr Leary, committed the offence before the Court only about seven months after his release to parole on 10 December 2022. As a result of the offence before the Court on 7 July 2023, that is the date of his arrest, his parole was revoked effective from that date, and his existing sentence is not due to expire until 24 May 2025. This means that none of the time he has spent in custody so far is due solely to the offence before the Court today. There is, however, always the possibility that on a parole review, he will be granted parole. In my view, it is appropriate to backdate his sentence but that this backdating should not be great. I direct that the sentence date from 18 March 2024. The head sentence, therefore, will expire on 17 September 2025. The non-parole period will expire on 17 March 2025.

62. Does counsel have anything to raise about any of those dates or anything else?

63. HWANG: No, your Honour.

64. SKINNER: No, your Honour.

65. VOROS: Not from my end, thank you.

66. HIS HONOUR: Thank you. No doubt the practitioners will explain to their clients if it needs to be explained in terms of those sentences. Thank you.

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Decision last updated: 25 November 2024