R v Lonesborough

[2020] NSWDC 825

District Court

New South Wales

Medium Neutral Citation:

R v Lonesborough [2020] NSWDC 825

Hearing dates:

8 October 2020

Decision date:

08 October 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 3 years 4 months. Non parole period 1 year 8 months.

Catchwords:

CRIME - detain a person with intent to obtain an advantage aggravated by causing actual bodily harm

SENTENCING – relevant factors on sentence - early guilty plea - mentally ill offender - prior failures to deal with mental health and substance abuse problems - background of disadvantage – treatment plan available

Legislation Cited:

Crimes Act1900

Cases Cited:

Courtney v R [2007] NSWCCA 195

DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

R v Verdins [2007] VSCA 102; 16 VR 269

Category:

Sentence

Parties:

Steven Matthew Lonesborough (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr S Fraser, Public Defender (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Ms A Kerr (for Director of Public Prosecutions)

File Number(s):

2019/00319142

SENTENCE – ex tempore revised

Introduction

1. Steven Lonesborough is for sentence today for an offence of detaining a person with intent to obtain an advantage aggravated by his causing actual bodily harm to his victim. He acknowledged his guilt in the Local Court. The offence, pursuant to s 86(2)(b) Crimes Act1900, carries a maximum penalty of 20 years imprisonment. That maximum is one guide to the exercise of my sentencing discretion.

2. Lonesborough comes to the Court acknowledging the harm that he caused his victim and expressing, through his letter to me, appropriate remorse. He comes to the Court with a plan for his rehabilitation on release. It is set out in a letter to the Court from his sister, who currently works with other Aboriginal people who have alcohol and other drug and mental health issues. She and the offender have had an opportunity to discuss his future. She acknowledges, frankly, that until those discussions he had not demonstrated any hope or plans for changing a life that had been blighted by mental health and drug issues.

3. He professes now to want to change his ways, accept the problems that he’s had and do something about them. The change in him between when he committed this offence on 12 October 2019 and today is reflected in all the material before me. In particular, his letter, his sister’s letter, and a report from Dr Richard Furst, a respected consultant forensic psychiatrist. Dr Furst concludes:

"After a thorough and professional examination of Mr Lonesborough, ... he has a major mental illness in the form of bipolar affective disorder, complicated by long-term trauma-related and abandonment-related emotional issues in the form of borderline personality traits and the destabilising effects of drug use over the last two decades…

It is borne out by the facts before me that he was, at the time he committed the offence, acutely psychotic and paranoid. He is now stable in mood and thought with no current signs of psychosis remaining or depression and he is engaged in programs with Corrective Services to improve his capacity to obtain work in the future and increase his capacity to obtain employment."

Facts for sentence

4. The sentencing exercise has to focus primarily on the offence and its seriousness. There are agreed facts before the Court; they are lengthy and complex. I will attempt to summarise them.

5. Lonesborough and his male victim came to know each other through a mobile phone app. They became friends and at the time, between April and October 2019, the offender would pick up his friend and drive him to spend the night at his home in Nowra. It is accepted that their relationship had elements that make this a domestic violence offence.

6. On the evening of Thursday, 10 October, the offender messaged the victim saying he was coming from Sydney and asked to meet up. Arrangements were made that Lonesborough would pick him up from his house and drive them to Nowra. On the way to Nowra the offender needed to buy petrol. As he had no money he made an arrangement with the service station whereby he left his mobile phone in exchange for a promise to return and pay for the petrol.

7. When they got to the home at Nowra both the offender and his victim fell asleep. The victim awoke and noted that the offender was smoking marijuana. Lonesborough became quite emotional. He told his victim a story about a fight that he’d got in when he’d been in Sydney. The victim at some stage fell asleep. He was woken at about 12.30am on the 12th by the offender coming home. The offender appeared to be “wired”, “energetic” and “irritated.” His victim asked, “What’s happening? Where have you been?” The offender said, “I was at an interrogation and they were laughing at me.” He was mumbling and not making sense.

8. Lonesborough continued to smoke marijuana. His victim decided that the best thing to do would be to leave. He left the home saying he would get an Uber, but the offender came after him and said, “I’ll drive you home.” They left Nowra at about 1.30am. There was some discussion in the car about money for petrol, but initially the offender said very little and they were both quiet. The victim remained angry that the offender had left him alone at home all day and what discussion there was related to the victim complaining about not being respected. During the journey the victim became more and more scared by the offender’s behaviour and what he was telling him.

9. The car was then driven off the highway. The offender reached over and placed his left hand on the buckle of the victim’s seatbelt. He said:

"Tell me the truth now or I will crash this car and unbutton your seatbelt and kill you. I’ll crash this car and with no seatbelt I’ll smash your skull straight through the windscreen.”

10. Not surprisingly his victim became very frightened and tried to placate him. The offender’s responses were not coherent. At times while driving the offender would pull off the road, stop the car and interrogate his victim, making the victim even more scared. He started talking about the “built-in screen on the dashboard.” The places he stopped were isolated industrial areas. The victim was at first too scared to get out of the vehicle. He was particularly worried he might be chased down and there would be no-one to help him. He tried to get his phone out of his pocket but the offender took the phone off him and put it on the dashboard.

11. At one point when they were stopped, and the offender was interrogating the victim, the victim yelled at the offender, “Why are you doing this to me? I don’t know anything? You are making no sense.” The offender slapped him in the face. Lonesborough took the Yallah exit and stopped the car where there was another interrogation. The victim then attempted to escape, but he was stopped from doing so. The offender put his hand over the victim’s hand and punched him in the mouth with his right fist.

12. Lonesborough threatened his victim: “Don’t you ever do that again or I’ll fucking kill you. I’ll smash your skull on the windscreen.” They drove on. Further threats were made. The victim made up some stories in an attempt to placate the offender. The offender told him, “Your best luck tonight is for the police to stop the car.” The offender started driving again but slowly as it was a residential area. The victim, planning an escape, reached for his phone but was punched again.

13. As the car slowed to go through a roundabout the victim was able to open the car door. He threw his backpack at the offender and unclipped his seatbelt. As he did so the offender grabbed his right hand and bit his knuckles. He the grabbed his victim’s left hand and bit it. There was a struggle during which the victim lost his T-shirt, but eventually the victim was able to get out of the car. He landed on the road, grazing his arms and legs.

14. A resident of the suburb where this event occurred, heard a noise and cries for help. He provided assistance. The police were called.

15. At about 8.30am Detective Fort spoke to the victim at Wollongong Hospital, where he was being treated for his injuries. On her way back to Lake Illawarra Police Station she was sent an “alert” and went to the Yallah Service Station. There she found the offender standing at his car. He appeared dishevelled and drug-affected. She saw that his eyes were wide open and he was frothing at the mouth. He complained of being the “fucking victim” and “defending himself.” She noted that his front teeth were loose.

16. Lonesborough was charged and arrested. During the night at Wollongong Police Station his two lower teeth fell out.

Victim impact

17. The victim was examined at Wollongong Hospital. He had bites to his left and right hands and lacerations to his lip. The bite on the left hand was weeping. There was an abrasion to his left and right elbow, and although he still had full range of movements, there was tenderness on the paraspinal cervical muscle.

18. No Victim Impact Statement was provided, but the absence of a Victim Impact Statement cannot and does not mitigate. The offence was objectively serious. The “advantage” said to have been gained was psychological, given Lonesbourough’s disturbed state, and what he said to the victim. From the point where the car pulled over off the highway on the trip North from Nowra when the first series of threats were made, until the victim was able to make his escape at near Yallah, it must have been a particularly terrifying experience. His victim was not to know, and could not know, given the things that were being said by the offender, what this was all about. His victim was not to know what his fate was to be.

19. It is clear that the offender was both drug-affected and significantly affected by his mental illness. His victim was helpless in the face of multiple threats and suffered a number of injuries. The fact that he was able to escape does not significantly mitigate the offence.

20. It is accepted that given the maximum penalty and the seriousness of what was done that only a full-time custodial sentence could meet all the purposes of sentencing, appropriately vindicating the dignity of this victim of violence and reflecting the clear impact that an offence such as this has on the community.

21. I have had regard to the written and oral submissions of Mr Fraser, the Public Defender, and Ms Lasschuit, solicitor for the Director of Public Prosecutions. Both accepted that the only real explanation for the offending and Lonesbourough’s behaviour is his mental illness. Both accept however that at the time he was not taking his prescribed medication and aggravating his symptoms by the use of illicit drugs.

Offender’s background

22. Lonesborough is now 34. He has two children. He was grown up by his mother, who had her own psychiatric and drug and alcohol issues. His father disappeared from his life when he was young and he’s had no contact with him. He had learning difficulties at school and spent time in foster care. He reports a history of childhood sexual abuse. It’s clear that he suffers from low self-esteem. There is a documented history of mental illness, self-harm and substance abuse.

23. At various times he has been assisted by the Aboriginal Medical Service. He has also been admitted for short-stay psychiatric emergency care. It’s also clear that he has responded well while he has been in custody, but that positive response has, to date, occurred only when he’s in custody. He has to be released into the community after he has served the custodial part of his sentence. Given he has a persistent mental illness and has, in the past, used what Dr Furst calls “maladaptive coping strategies”, such as the use of illicit drugs, without assertive follow up, his prognosis is guarded.

24. He will suffer more while he is in custody than a notional prisoner who is not so afflicted, but he has also benefited from his time in custody by the stabilisation of his symptoms. I’m prepared to accept that all the evidence before me means that his mental illness does reduce his moral culpability, as does his background. I will apply the principles succinctly summarised in both the DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] and the Victorian case of R v Verdins [2007] VSCA 102; 16 VR 269 at 276 [32].

Synthesis

25. Where a psychiatric illness is relevant or central to the commission of the crime as here, a number of important principles apply. As Basten JA said in Courtney v R [2007] NSWCCA 195, “Sentencing in such cases raises difficult questions of judgment and assessments of problems which are, to an extent, intractable.”

26. A sentencing court has to synthesise all relevant features. Here, on one hand we have the commission of a serious offence against an innocent victim who was caught up in a situation over a lengthy period of time, where his life and liberty were, in a real sense, under threat and who suffered physical injuries and, one would suspect, continuing psychological concerns.

27. On the other hand, we have a mentally ill offender, but an offender that has been treated with leniency in the past by the Courts but has continued to offend. Although aware of his mental illness he had not then engaged, as his family I’m sure urged upon him, in appropriate treatment. In particular, he failed to make any meaningful efforts to deal with his long-standing drug abuse problem. That problem has its genesis in what is commonly called a ‘history of disadvantage’, coupled by a long-term decline in his mental state.

28. This is not a case where Lonesborough should be made an example of. Nevertheless, it is important that he learns that if he does not take steps to help himself, with the help of his family and others, the only consequence of similar offending in the future will be long-term imprisonment. I can’t find that imprisonment will have a significant adverse effect upon him but obviously there are restrictions on what he can and can’t do given the COVID pandemic and the necessary steps being taken by Community Corrections to deal with that problem in custody.

29. The offence committed requires further time in custody. I am prepared to structure the sentence by making a significant finding of special circumstances to enable Lonesborough to have an opportunity, when he has served the minimum time that his offence requires, to prove himself in the community and take up the assistance and plan suggested by Dr Furst, a copy of whose report will accompany the warrant: Exhibit 1.

30. My finding of special circumstances does not mean that he will be released at the expiry of his parole date but rather it gives him a date to work towards. If, with the help of his sister and Community Corrections, a release plan, possibly involving residential rehabilitation and a Mental Health Community Treatment Order, can be put in place, there are chances that, at last, he can turn his life around. If he fails to take those opportunities and commits further offences he can look forward to spending a significant part of his life in custody. He has enough insight, as displayed in his letter, to realise that.

31. Balancing all of those factors I’ve come to the view that had it not been for his early plea of guilty a sentence of four years and six months would have been imposed. There will be a sentence here of three years and four months.

Orders

32. You are convicted and sentenced to a term of imprisonment of 3 years 4 months consisting of a non-parole period of 1 year 8 months to commence on 12/10/2019 and expire on 11/06/2021. You will be eligible for consideration for release to parole on 12 June 2021.

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Decision last updated: 02 February 2021