R v Maher

[2020] NSWDC 410

District Court

New South Wales

Medium Neutral Citation:

R v Maher [2020] NSWDC 410

Hearing dates:

21 May 2020

Date of orders:

21 May 2020

Decision date:

21 May 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Aggregate sentence of seven years imprisonment with an aggregate non-parole period of four years and six months imprisonment.

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Violent offences — Stalking or intimidation

CRIME — Violent offences — Assault occasioning actual bodily harm

Legislation Cited:

Crimes Act 1900 (NSW), ss 59(1), 112(3)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases Cited:

The Queen v Ponfield (1999) 48 NSWLR 327

Bugmy v The Queen (2013) 249 CLR 571

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Joshua Maher (Offender)

Representation:

Solicitors:
Ms C Ervin (Crown)
Mr K Clowry (Agent on behalf of Offender)

File Number(s):

2018/00243823

SENTENCE

Introduction

1. The offender, Mr Maher, stands to be sentenced for the following offences having pleaded guilty to them.

2. The first is that on 19 May 2018 at Pitt Town he broke and entered the dwelling house of Greg and Maree Williams situated at 58 Glebe Road, Pitt Town and while in the dwelling house he committed the serious indictable offence of larceny in circumstances of special aggravation, namely that at the time of the break and enter he intentionally wounded Scott Warner.

3. When sentencing the offender on that offence he acknowledges his guilt in relation to two further offences on a Form 1, and asks that I take them into account when imposing sentence on that offence. Those offences are using an offensive weapon to commit an indictable offence. On 19 April 2018 he used a crowbar intending to commit the indictable offence of intimidation of Kate Warner.

4. The second of the Form 1 offences is an offence of intimidation of Lisa Williams, with the intention of causing Lisa Williams to fear physical or mental harm.

5. The second substantive offence that the offender is to be sentenced for is an offence that on 19 April 2018 at Pitt Town he assaulted Greg Williams, thereby occasioning him actual bodily harm.

6. The third substantive offence that the offender is to be sentenced for is an offence that on the same day in 2018 he assaulted Maree Williams, thereby occasioning actual bodily harm to her.

7. The break and enter offence is an offence under s 112(3) of the Crimes Act and has a maximum penalty of 25 years imprisonment and there is an applicable standard non-parole period of seven years.

8. The two assault occasioning actual bodily harm offences are offences under s 59(1) of the Crimes Act and have a maximum penalty of five years imprisonment and there is no applicable standard non-parole period.

The Facts

9. The facts are agreed and the following is taken from the agreed facts.

10. Greg and Marie Williams lived at 58 Glebe Road, Pitt Town. Those premises consisted of a main house and a granny flat. They lived in the main house and their daughter, Lisa Williams, their four year old granddaughter and Kate and Cale Warner, the son of Marie’s niece, Scott, and Tamasyn Warner, Cale’s parents lived in the granny flat.

11. In the early hours of 19 April 2018 Greg and Maree Williams were asleep in bed and were woken up by the sound of someone ransacking their bedroom. They saw two individuals, the offender and an unknown male dressed in dark clothing, with gloves and balaclavas. The offender was armed with a crowbar and the other male was armed with a pistol. They deduced, that is the Williams’ deduced, that the persons involved were male upon hearing them speak. The offender was the first to speak and he told Greg Williams to get up and open the safe. The safe was opened by typing in a six digit code. Greg Williams made three or four attempts to enter the code, but was unsuccessful, as he was not wearing his glasses and could not read the numbers. Each time he incorrectly entered the PIN the offender hit him on the back and shoulder with the crowbar. That essentially is the evidence about the actions which give rise to the assault occasioning actual bodily harm offence concerning Mr Williams.

12. As time passed both males were becoming vocal and raising their voices and demanding that the safe be opened. Cale Warner woke up on hearing the voices and he went into Greg and Marie Williams’ room. As he stepped into the room the offender swung the crowbar at him, but just missed, hitting the door instead.

13. By that stage Marie Williams’ took over trying to open the safe. She too made a number of incorrect attempts before she was able to open it. The offender was smashing the door in frustration and when she finally managed to open the safe he hit her over the head with the crowbar, this act giving rise to the assault occasioning actual bodily harm in relation to her.

14. Lisa Williams had woken up and she heard the commotion and when she saw what was happening she told Cale to alert his father, Scott. Cale was on his way to the granny flat when he saw Scott who was already on his way up to the main house. Cale called triple-0 while Lisa and Scott confronted the offender. The offender followed Lisa Williams down a corridor into the kitchen before heading back up the hallway to the bedroom. Lisa Williams was behind him and he turned and chased her down the hallway wielding the crowbar which is the intimidation offence on the Form 1.

15. Scott Warner managed to get hold of the offender and tackled him. They struggled for a period before Scott Warner was able to push the offender through the plate glass panelling in the dining room. They continued to struggle and Scott Warner had him in a headlock, but he bit Mr Warner on the arm. Cale Warner saw the offender remove something from his pocket and heard him say words to the effect of, “I’m stabbing you. I’m stabbing you”. Cale shouted out to Scott Warner to warn him that he was going to be stabbed. Scott was still struggling with the offender when the other male, who had by now cleared out the safe, came into the kitchen and pointed the firearm and told Scott Warner to let the offender go. As both males ran out of the house Lisa grabbed the balaclava from the head of the offender. She was able to get a good look at his face before he snatched the balaclava back from her. No one gave chase as they were afraid of being shot. The occupants remained in the kitchen with Scott Warner and helped to stem the flow of blood from the stab wounds on his legs.

16. Police and ambulance officers soon arrived and Scott Warner was taken to Westmead Hospital where the three stab wounds to his right leg were cleaned and sutured. He had some other minor lacerations and bruising and a bite mark on his right lower arm where the offender had bit him. The bite mark was able to be linked to the offender by virtue of DNA.

17. Greg and Marie Williams also attended to at Westmead Hospital. Greg Williams was examined for his chest and shoulder injuries and he had been struck several times by the offender with the crowbar. No injuries were revealed or fractures upon a chest x-ray. He suffered a superficial abrasion and bruising around his right shoulder blade. Marie Williams underwent head and spinal CTs to confirm that there were no internal injuries. She had a laceration to the back of her head and tenderness at the base of her skull. She also had fractured a toe in the fracas. Neither of them required further treatment and they were both discharged after about six hours.

18. The police remained at the house and located a number of items of interest, including a crowbar and a knife sheath wrapped in green masking tape. It was determined that entry had likely been gained through the laundry door as the house had been locked and secured prior to everyone going to bed. On inspection it was noted that the laundry door had been removed and the door jamb damaged.

19. Items stolen from the safe included approximately $10,000 in cash, an engagement ring said to be valued at approximately $16,000, various items of jewellery including Greg Williams’ wedding band, two gold watches, passports, various personal documents and a Will. Items that the police located were sent for DNA analysis and the DNA linked those items to this offender and another person.

20. On 27 April 2018 a Ms Hurtsell was taking her dog for a walk. She noticed a balaclava and a short distance from it was a small metal box without a lock. She alerted the police and again they were able to be linked to the offender and he was formally charged on 21 July 2018. He was in custody at that point of time on another matter.

21. There is also before me a victim impact statement from Marie Williams which sets out the lasting impact the offences have had upon her.

Objective Seriousness

22. I turn then to my assessment of the objective seriousness of the offences.

23. I have had some regard to the objective aggravating factors discussed in The Queen v Ponfield (1999) 48 NSWLR 327, in assessing the specially aggravated break and enter offence noting that decision dealt with the basic form of the offence and was prior to the introduction of s 21A of the Crimes (Sentencing Procedure) Act. I note that the co-offender has not been brought to justice in relation to the offences and he was the person who possessed the pistol. There was some damage to the property during the commission of the break and enter offence noting the smashing of a glass door at one point. Significant items were stolen from the property. There was clearly some planning involved given the apparent knowledge of the safe, the use of the balaclava, and the fact that the offender had a knife and a crowbar as weapons.

24. This offender stabbed one of the occupants, Mr Warner, after Mr Warner intervened to prevent the offender from pursuing one of the female occupants. The offence occurred at the home of the victims which is an aggravating factor under s 21A. Similarly, the offender was armed with a weapon which he inflicted the wound with and that is also an aggravating factor. The offence occurred when it was likely someone would be home and asleep in the property.

25. I consider the break and enter offence was, objectively speaking, in the upper end of the midrange of objective seriousness for such an offence.

26. The assault occasioning actual bodily harm offence on Greg Williams involved several strikes with a crowbar to the back and shoulder. He fortunately suffered no fractures. He did suffer a superficial abrasion and bruising around his right shoulder blade. I assess the objective seriousness of that offence as being a little below the midrange of objective seriousness.

27. The assault occasioning actual bodily harm offence upon Marie Williams involved a strike to the head with a crowbar. Mrs Williams suffered a laceration to the back of her head and tenderness at the base of her skull. The only fracture she suffered was a broken toe.

28. The two offences on the Form 1 have some impact upon the sentence imposed on the break and enter offence given they involve two further victims.

29. I omitted to state that I consider the assault occasioning actual bodily harm offence on Mrs Williams also to be a little below the midrange of objective seriousness.

The O’s Subjective case

30. I turn to the offender’s subjective case. His date of birth is 24 March 1989, so he is 31 years of age. He has something of a criminal history.

31. On 28 February 2012 in the Drug Court he was sentenced in relation to three counts of break, enter and steal and given a suspended sentence. On 15 June 2012 he was re-sentenced in the Drug Court for those offences.

32. On 5 March 2013 he was given short terms of imprisonment for a number of offences which included common assault and those sentences were not disturbed on appeal to this court.

33. On 21 August 2014 he received a sentence of imprisonment for an offence of assault occasioning actual bodily harm.

34. On 28 July 2015 on appeal from the Local Court he received a sentence of imprisonment for an offence of break, enter and steal.

35. On 17 May 2017 he received in the Local Court a sentence of imprisonment for an offence of break, enter and steal and on 26 July 2017 he received a sentence of imprisonment for a number of offences including offences of being armed with intent.

36. His criminal history, in particular for break and entering offences, disentitles him to leniency here.

37. He committed the current offences while on parole for the break, enter and steal offence that he was sentenced for on 17 May 2017. He has been in custody since 26 April 2018 but served the balance of parole during the period from 26 April 2018 to 16 November 2018 and he was charged with the current offences on 31 July 2018.

38. There is before me a sentencing assessment report and a report dated 22 April 2020 by Dr Andrew Ellis, a forensic psychiatrist. The offender did not give evidence on sentence and what follows has been taken from the two reports having regard to the fact that he did not give evidence.

39. In terms of his family background; when he was born he spent some time in Neonatal Intensive Care for a few months. As a young child he attended special schools, having learning difficulties. Ultimately, the material before me though does not support a finding that he has an intellectual disability. He has three older siblings. He told Dr Ellis that his father had engaged in domestic violence and left the family home when the offender was six years of age. According to what he told Dr Ellis, he witnessed and experienced domestic violence from within the home.

40. As an adult he has lived with his mother and still has her support and proposes to live with her when he is eventually released from custody.

41. In terms of his education and employment history, he attended school until he was 17 and completed what is referred to as a Life Skills Program. He told Dr Ellis he had discipline problems at the school. Post school, according to what he told Dr Ellis, he completed three years of a plumbing apprenticeship, but did not complete the course component of it.

42. In terms of his illicit substance use, he told the author of the sentencing assessment report that he commenced using prohibited drugs from the age of 12 as a means of dealing with unresolved trauma. The offender is recorded in that report as stating that he was under the influence of methylamphetamine during the commission of the offences.

43. Dr Ellis diagnosed the offender is suffering from a Substance Use Disorder concerning cannabis and alcohol. The doctor considered that the offender “has organised his life around substance use”, and reported that the offender was continuing to use prohibited drugs in custody.

44. When interviewed by Dr Ellis the doctor was of the opinion that there was no evidence of any formal thought disorder. The offender reported to Dr Ellis he continued experiencing a phenomena associated with post-traumatic events and described ongoing cravings for substances and recent symptoms of withdrawal.

45. Dr Ellis considered it was likely that the offender suffered from Post-Traumatic Stress Disorder and described aspects of his life which were consistent with Personality Disorder. The psychiatrist considered that the offender’s combination of mental disorders, particularly Post-Traumatic Stress Disorder and Personality Disorder, rendered the offender more prone to impulsive action and non-consequential thinking than the average person. When intoxicated the effect upon him of his mental disorders is greater.

46. Dr Ellis considered that the offender needs to undergo drug and alcohol rehabilitation and that once he is no longer using illicit substances he could be considered for psychiatric medication. The doctor also considered that the offender would likely benefit from cognitive behavioural programs. The doctor considered the offender’s risk of reoffending would be moderated if he was free of illicit substances and engaged in rehabilitation.

47. The sentencing assessment report records that during his most recent period of supervision in the community the offender’s supervision focused on his drug use and that he was resistant to engage as directed or to avail himself of detoxification and rehabilitation programs. His response to supervision was unsatisfactory and he was subject to breach action for failing to maintain contact with Community Corrections.

48. Dr Ellis records in his report that the offender made statements indicating that he was sorry for his conduct. The offender told the author of the sentencing assessment report that the offences were not financially motivated, but were in retaliation towards the home owner. The author of that report records that the offender displayed minimal insight into the impact of his actions on the victims and was unable to contemplate the seriousness of his offending behaviour. The sentencing assessment report assessed the offender’s risk of reoffending as being high.

Imposition of sentence

49. The Crown accepted that the offender entered his pleas of guilty as soon as he was found fit to be tried. In these circumstances, I allow him a 25% discount of his sentence for the utilitarian value of his pleas.

50. I think there is some evidence of remorse, given the early plea of guilty and his statements to Dr Ellis. I do not, however, think he fully understands the seriousness of his offences and the impact that they have had on his victims.

51. Given his record, the fact this offence was committed while on parole for a break and enter offence, and his poor response to supervision in the past, he has only guarded, bordering on poor, prospects of rehabilitation. Those prospects will be increased if he manages to engage in the type of rehabilitation discussed in Dr Ellis’ report.

52. I do not consider that his mental health conditions on their own are the substantial cause of the offences, but rather the offences were due to a combination of his mental health conditions together with his taking of prohibited drugs. Generally the fact that an offence was committed under the influence of prohibited drugs is not a mitigating factor on sentence. Where an offender is young and turns to drugs due to a traumatic experience in their life and has not had many chances to engage in rehabilitation, there can be some mitigation of the sentence.

53. This offender appears to have turned to drugs due to trauma in his early years, but he has had a number of opportunities to engage in drug rehabilitation and has failed to take them. He has shown little resolve to date to properly engage in drug rehabilitation. I do not consider the fact he was under the influence of prohibited drugs at the time of the offences in any way mitigates the sentence.

54. I have some regard to the offender’s somewhat disadvantaged and difficult upbringing when imposing sentence in accordance with the Bugmy v The Queen (2013) 249 CLR 571 principles.

55. His prospects of rehabilitation will be assisted if he has a longer period on parole. He will need careful and intensive supervision in relation to his mental health and drug dependency when next in the community. I will make a finding of special circumstances when fixing the non-parole period.

56. I noted earlier that he has been in custody since 26 April 2018 and was serving the balance of parole until 16 November 2018. In the circumstances, having regard to the principles of totality, I propose to commence his sentence from 26 July 2018.

57. While there was only one incident involved here, there were in essence three victims. I will utilise the aggregate sentencing provisions when imposing sentence; if I had not done so there would be some accumulation of the sentences given the number of victims involved in the offending. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.

49. Violent home invasions, like the one committed by this offender are very serious offences. People must be able to live their lives without the threat of someone violently breaking into their home and seriously assaulting the occupants. Sentences must be imposed which represent a proper deterrent, not only to this offender, but also to others. The offender’s record means that there must be an element of specific deterrence reflected in the sentence.

50. The maximum penalties, and in relation to the specially aggravated break and enter offence, the standard non-parole period have been taken into account as legislative guideposts. I have departed from the standard non-parole period due to the plea of guilty and my finding of special circumstances.

51. Mr Maher, you are convicted of the three offences to which you pleaded guilty.

52. I will firstly record the indicative sentences and in determining the indicative sentences and fixing the aggregate sentence I have had regard to all the objective and subjective factors I referred to earlier.

53. The sentences you will first hear me announce Mr Maher, are what are called indicative sentences. You will then hear me announce an aggregate sentence which is the sentence and the non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. On announcing the aggregate sentence I will tell you the date it starts from, the date it ends, and the date that you are first eligible for parole.

54. I consider that the appropriate starting point for the specially aggravated break and enter offence, prior to applying the discount for the plea of guilty, to be one of eight years imprisonment. On the specially aggravated break and enter offence having regard to the two offences on the Form 1, I record an indicative sentence of six years imprisonment and an indicative non-parole period of three and a half years imprisonment.

55. I consider the appropriate starting point for the assault occasioning actual bodily harm offence on Greg Williams, prior to applying the discount for the plea of guilty, is one of two years imprisonment. On the assault occasioning actual bodily harm offence on Greg Williams I record an indicative sentence of 18 months imprisonment.

56. Likewise, I consider the appropriate starting point for the assault occasioning actual bodily harm offence on Marie Williams prior to applying the discount for the plea of guilty is one of two years imprisonment. On the assault occasioning actual bodily harm offence on Marie Williams I record an indicative sentence of 18 months imprisonment.

57. I impose an aggregate sentence of seven years imprisonment with an aggregate non-parole period of four years and six months imprisonment. It dates from 26 July 2018 and expires on 25 July 2025. The non-parole period expires on 25 January 2023.

58. The earliest date that you are eligible to be released to parole Mr Maher is the date of the expiry of the non-parole period which is 25 January 2023. Whether you are, in fact, released to parole that day is a matter for the State Parole Authority which will no doubt take into account your behaviour in prison, in determining whether you are released then or on another date.

59. So, it is an aggregate sentence of seven years with a non-parole period of four years and six months. It dates from 26 July 2018 and expires on 25 July 2025, and the non-parole period I have expiring on 25 January 2023. The two common assault maters are withdrawn and dismissed.

Orders

1. In relation to Count 1, taking into account the two offences on the Form 1, record an indicative sentence of 6 years imprisonment and an indicative non-parole period of 3 years and 6 months imprisonment. Record a 25% discount for an early guilty plea.

2. In relation to Count 2, record an indicative sentence of 18 months imprisonment including a discount of 25% for an early guilty plea.

3. In relation to Count 3, record an indicative sentence of 18 months imprisonment including a discount of 25% for an early guilty plea.

4. Impose an aggregate sentence of 7 years imprisonment with an aggregate non-parole period of 4 years and 6 months imprisonment.

5. The two common assault maters are withdrawn and dismissed.

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Decision last updated: 03 August 2020