R v Maranda

[2020] NSWDC 696

District Court

New South Wales

Medium Neutral Citation:

R v Maranda [2020] NSWDC 696

Hearing dates:

22 October 2020

Date of orders:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 2 years

Catchwords:

CRIME — Domestic violence — Stalking or intimidation

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Property offences — Goods in custody

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Relevant factors on sentence — Multiple offences

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Victim attitude to offender

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Summary Offences Act 1988

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

Imbornone v R [2017] NSWCCA 144

PB v R [2016] NSWCCA 258

R v Henry (1999) 46 NSWLR 346

R v Qutami [2001] NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Karl James Maranda (Offender)

Representation:

Stacey Paschke (Crown)
Elly Mason (solicitor for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission (Offender)

File Number(s):

2020/00014579

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Karl James Maranda appears today for sentence in respect of an offence of aggravated entering a dwelling house with intent to intimidate contrary to s 111(2) Crimes Act 1900 for which the maximum penalty is imprisonment for 14 years. There is no standard non-parole period specified for this offence.

The Principal Offence

2. The particulars of the charge certified for the District Court are as follow, on or about the 15th day of January 2020, at Marrickville in the State of New South Wales, he entered the dwelling house of MJF situated at Illawarra Road with intent to commit a serious indictable offence therein, namely intimidation, in circumstances of aggravation, namely he knew that there were persons present within the said dwelling house.

Form One

3. He asks that I take into account an additional offence particularised in a Form 1 which has been signed by the offender and on behalf of the Crown. This is an offence contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 for which the maximum penalty specified is imprisonment for five years.

4. The particulars of that offence are that he between 9 and 16 January 2020, at Marrickville in the State of New South Wales, he stalked and intimidated MJF with the intention of causing her to fear mental harm.

Summary Offences

5. There are offences before the Court by way of s 166 Criminal Procedure Act 1986. The first of those is an offence of having the custody of a knife in a public place, sequence 5. Particulars of that offence are that between 9.25pm and 10pm on 15/01/2020 at Marrickville he without reasonable excuse had in his custody a knife in a public place, to wit the footpath outside [the premises at] Illawarra Road Marrickville, having previously been dealt with for a knife-related offence. The maximum penalty specified for that offence is imprisonment for two years and a fine represented by 20 penalty units.

6. Another offence before me by way of s 166 Criminal Procedure Act 1986 is of goods in custody the particulars which are that at 9.25pm and 9.30pm on 15/01/2020 at Marrickville he had in his custody certain property, to wit a Myer one card belonging to PC, which may be reasonably suspected of being stolen or otherwise unlawfully obtained.

7. The offence of having custody of a knife is contrary to s 11C(1), Summary Offences Act 1988. The offence of goods in custody is contrary to s 527C(1A) Crimes Act 1900; the maximum penalty specified for that offence is imprisonment for six months and a fine of 50 penalty units.

Pleas

8. The offender pleaded guilty to the summary offences when the charges were read to him in court today. He acknowledged his plea of guilty entered in the Local Court to the principal offence of aggravated enter dwelling house with intent to intimidate and confirmed that he adhered to that plea of guilty in this Court; the plea was entered in the Local Court on 30 July 2020. He confirmed that he wished the additional offence on the Form 1 to be taken into account and admitted that he is guilty of that offence.

Discount

9. For the offences to which he has pleaded guilty he is entitled to a discount of 25% for the utility of the pleas of guilty had provided in accordance with s 25D Crimes (Sentencing Procedure) Act 1999. The discount is applied to the starting point obtained upon the synthesis of objective and subjective material that has been presented to me including the extent that there has been shown contrition and remorse and whatever prospects there might be for rehabilitation.

Pre-sentence Custody

10. He has been in custody since he was arrested on 15 January 2020. The sentence that I impose today, which will be an aggregate sentence after I have determined what are the appropriate indicative sentences in each case, will commence on that date.

The Facts

11. The facts are before me by way of an agreed statement. He is 34 years of age, he lives in Camperdown. The victim in the principal offence was born in 1982 and is therefore four years his senior. She resides in the premises where the principal offence occurred at Illawarra Road, Marrickville.

12. Her unit is one of two located above a group of shops. The main entry to the unit is via a common unlocked doorway on Illawarra Road. This leads to a staircase which rises to the front doors of the two units. The victim’s unit is one of three bedrooms with one bathroom, a lounge room and kitchen.

13. At the rear of the unit is a large outdoor verandah which is bordered by a combined brick and metal wall approximately two metres high. On the northern side of that verandah there is a small drop of about one metre to the neighbouring property; this has a flat top roof which runs from the rear of the property down to the front of the building on Illawarra Road.

14. In her unit the victim shared her bedroom with a young woman named Fuentas; another person, Ms Cantordiaz, occupied another bedroom and another young woman named Cardenas occupied a third bedroom.

15. The offender and the victim became acquainted on Christmas Eve in 2019. On 2 January 2020 the relationship became intimate; they did not reside together however. On 10 January 2020 the victim told the offender that she wished to conclude their relationship.

16. The facts then deal with the Form 1 offence of intimidation.

17. The victim had two mobile telephone numbers, the first ending in ...773 and the other ending in ...962. She used the service ending in ...773 for WhatsApp messaging; she did not have a SIM card in that device. She obtained a SIM card for the service ending in ...962 and used it from the date of acquisition.

18. The offender had a mobile telephone service the number ending in ...511 and he used this number to contact the victim throughout their relationship. Between 10 and 15 January 2020 he telephoned her 96 times; she did not answer. The calls either rang through or the offender left voicemails to which she did not listen.

19. More particularly, on 10 January 2020, he called her four times between 4.30pm and 11.54pm. On 11 January 2020, he called her eight times between 5.19am and 9.29pm. On 12 January 2020, he called her 13 times between 12.48pm and 10.59pm. On 13 January 2020, he called her 25 times between 12.33am and 11.20pm. On 14 January 2020, he called her 25 times between 12.01am and 11.59pm and on 15 January 2020 he called her 21 times between 12am and 9.14pm. Thus the frequency with which he attempted to make contact with her in this fashion increased over the first five days with a slight diminution on the sixth.

20. Between 10 and 15 January 2020, he sent her 54 texts and WhatsApp messages. The victim blocked the offender on both her telephone and the WhatsApp application but the messages were still received and stored on her phone. Some of the messages contained large amounts of text which filled the phone screen. The messages were largely unanswered. In those messages, he apologised for his behaviour and begged her not to finish the relationship.

21. On 10 January, he begged the victim not to contact the police. He sent five text messages to the victim. The message sent at 5.36pm is in the following terms,

“PLS don’t call police, I wont bother you. pls let KE know your safe...you have a lot of gangsters starting this out??? I never hurt you an if they are i will fix it for you...Okay, let me no you’re safe an okay an i leave...i got those flowers with last of money so hope you liie them. xxoo”

22. In this quote and others following in the judgement I quote the terms used in the transmitted messages including any misspelt words and poorly structured phrases.

23. On 11 January 2020, he sent one text message to the victim. On 12 January 2020, he sent nine text messages to the victim. On 13 January 2020, he sent 17 text messages to the victim between 12.32am and 11.07pm including;

“M are you awake thank you for reply to me. I am not crazy babe. i did not sleep for long time but i also was really stressed by all of this and i promise to you this wont happen again. i want you in my life so badly i sno you do 2...but you’re worried so i am not actually sane...hahah M i am it just that i am abit out of practise with this stuff...like i said its been a few yrs but you will see...i no you are good person for me an me for you we make great partners just i need to be not too clingy with you...i am sorry M again i toss an turn in my bed...xxx(00:32)

I wait for your forgiveness i no we can fix this just i need time an no drug (08:49).

CALL ME PLS...XXXOOOOOOO WE NEED TO FIX THIS BABE I PROMISE THAT IS ALL DONE WITH THE PARINOID SHIT OKAY DONE TOTALLY FINISHED WITH...XXXXX (14:20)

can you pls say something why you letting your friends make s choice for yoy (18.33)

if you cared about me you would of wanted to help me when I thibk rhier is another man...or porn industry or stolen herdribes...iv spoke to few heavy gangsters and I’m wrong (18:45)”

24. On 14 January 2020, he sent 12 text messages to the victim. On 15 January 2020, he sent ten text messages to the victim between 12am and 2.49am. He wrote;

“Fuck you M you fukmg love doing this you had it all planned I bet (00:02)

M I just woke but you didn’t come see me (00:46)

You want to pupoy dog for a bfriend go fuk a dog then (01:20)

I fuking love you i eont take drugs you do you look like a junkie (01:21)

Sorry no you don’t i feel so fuking hurt...what i kill myself is that you want (01:23)

You don’t no how I feel I have no friends I cry so hard ‘cause my life you said you want to be with me as soon as I feel loved you don’t call or comw see me...i really don’t want life any more it suck but this life is painful always painful. I’m sorry to come to your bed but you no that I want you I want to cuddle with you...the last time we had sex I was fukd up and you left me the next morning to do well more importsnt things...I never will give you my hear again...I diservt better iv lived a big life and I want to end up it hope you’re happy. (01:28)

Tell my daughter I love her to (01:28)

Go block me...you treat me like I’m your enemy...you didn’t make love to me you fuked me...you hated every minute of it too...fuk you M I’m trying I can’t make this better I can’t forget you I hate I love I hate this feeling you give to me. You are a mean person to eo this to me...probably too easy for you to get cock I guess...you get it all the time. I know thier is go to be someone else always is!!!! (02:47)

Even to go out to party last night tell me nothing...you keep the room spare ‘cause you’re working girl. or someone up thuir is (02:48)

You don’t want me fine i too with other women now. I don’t love her I love you but we all have needs and no sex is no fum idone that for yrs now i will fuk everyone interested and show you (02:49)”

25. Between 19 and 15 January 2020, the victim sent two messages to the offender. On 12 January 2020 at 9.47pm she wrote that she did not want to hurt him but to get away from him; she continued;

“Because you need psychological help, we cannot be together not with your many imaginations and bad attitudes towards others. I do not look, please. For me it is still very painful. Here where I live the neighbours put a complaint about your behaviour and do not want more problems.”

26. On 13 January at 6.41pm, she sent the same message with an amended opening and closing line;

“I again say the same for the last time, Karl...you don’t do more difficult.”

27. The police review of the Facebook chat application on the offender’s mobile phone revealed several chats with people who have either the same first name or surname as the victim. The original chat with the victim using the Facebook chat application ended on 5 January 2020. All other chats with people of similar names began after 5 January 2020 and screenshots of those images have been obtained.

Form 1 Offence

28. The Form 1 offence is one of some magnitude in my assessment and although it is part and parcel of the one sequence of conduct directed toward the victim it does have an impact to the extent that the sentence that would have otherwise been imposed on the principal offence will be increased in accordance with the guidance provided in the judgement from Spigelman CJ in Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.

29. The additional offence must impinge upon the sentence for the principal offence to increase the sentence that would otherwise have been applied to the principal offence standing alone, to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the nature and the extent of this misconduct and the entitlement of the community to have an appropriate level of retribution for the offences upon which he engaged.

30. The Crown in their submissions have reminded me of the decision in PB v R [2016] NSWCCA 258 for the proposition that in such as these circumstances the offending associated with the principal charge may well have the consequence of disclosing a greater need for specific deterrence and more severe punishment. I agree with that submission.

The Principal Offence

31. The principal offence of aggravated entering the dwelling with intent to intimidate occurred in the following circumstances: On 15 January 2020 the victim was at home with her flatmates in the apartment. The front door was locked. The rear sliding door on to the balcony was open to allow access for a cat. Ms Cantordiaz went to sleep in her bedroom at 9.30pm. At 2am the cat woke her. She walked to the kitchen and noticed the sliding door to the balcony had been opened to twice the extent of the opening she had before then left. She rectified this and returned to bed. She went to sleep. During the night she was woken by a noise which sounded like someone knocking on the front door. She heard a male voice say, “M, M”. She was very scared. She got out of bed and locked her bedroom door.

32. The victim retired to bed about 11pm and Ms Fuentas who shared the bedroom with her also went to bed at that time. Ms Fuentas found difficulty sleeping so she lay awake listening to music.

33. About 12am the victim was awoken to knocking on the front door. She heard a male voice saying words to the effect of, “Come on, M” and “Fuck you, M”. She quietly approached the door and peered through the peephole; she saw the offender on the other side. She did not respond to this call and pretended that there was no one home. About five or ten minutes later the offender left and she returned to her bed.

34. CCTV footage from the supermarket at 307-309 Illawarra Road, Marrickville was accessed; this depicted the offender at 12.30am riding a push bike south along the eastern footpath of Illawarra Road. He stopped and entered the open doorway to the premises with his bike. At 12.37am he exited the common area and loitered around the doorway. At 12.40am he walked north along Illawarra Road past the supermarket. At 12.47am he walked back past the supermarket and stopped around the doorway to the premises before entering. At 12.49am he exited the doorway and began speaking to two unknown males; all three walked north and past the supermarket. At 12.58am he walked off the footpath and underneath the awning belonging to the supermarket. He lit a cigarette and loitered for a while. He walked over to the locked side gate leading to a small alley belonging to the supermarket. From that position it is possible to see the rear of the property and the victim’s balcony.

35. At 12.59am the offender dragged a large wheelie bin from underneath the awning to the footpath. He climbed on to the bin and then on to the roof of the supermarket. He walked along the roof of the supermarket to the rear of the store where he then climbed on to the victim’s balcony to enter her unit. There was no CCTV installed to show that perspective.

36. About 1am he climbed on to the flat roof located on the northern side of the victim’s unit. He walked the length of the roof before scaling the wall surrounding the balcony at the rear of the property. He then entered the unit via the open sliding glass door. He entered the victim’s bedroom. He sat on the bed and moved her shoulder to wake her up. He said, “I want to fix the relationship, I love you. I have not slept.” The offender told the victim that he missed her and began to cry. The victim said, “Get out of the house.” The offender ignored her and said, “Come and live with me.” The victim asked the offender how he got into the apartment. He told her he used the sliding glass terrace door on the second floor.

37. At one point he shone his mobile phone light into the face of Ms Fuentas who was in the other bed in the room. She, unsurprisingly, thought it was strange that he was in the house but claims she was not really scared. The victim told the offender to get out. She got up to walk him to the door. He told her he had left his shoes. They walked to the sliding glass door. He put on his shoes, jumped over the back fence and left. She saw him pick up his bag and put on his bicycle helmet.

38. At 1.15am she called Triple-0 but told the police not to come because she did not wish to frighten her flatmates.

39. The victim was concerned the offender would return. At 1.17am CCTV depicted the offender exiting the doorway on Illawarra Road before riding his bicycle north along that street.

40. On 15 January 2020 the victim attended Marrickville police station with Ms Cantordiaz. At 2.09pm the offender sent a text message to the victim;

“Yoo called the fucking police on me cunt fun you. I’m okay thanks for caring. I’m hurt but you.”

41. Text messages followed shortly after. These were first at 2.23pm;

“Hurt but you I would never kill myself. I never should of said that, I’m sorry. It’s a week now at, I have a daughter that I’m to us less to see to see...you only caused me pain and don’t understand me...maybe you should stick to your own kind you make no effort with me.”

42. Then at 3.30pm, “Call me pls.” At 4.58pm, “Call babe.” At 8.21pm, “Why no answer”.

43. At 8.30pm the police attended the victim’s apartment and took several photographs. At 9.15pm the police attended the offender’s residence but he was not at home. They contacted him on his mobile. A male answered. The police introduced themselves. The offender said, “Is this about M?” The police asked him to attend the Marrickville police station and asked where he was at the time. He said, “I’m going to see M. at Marrickville.”

42. Now the summary offences; about 9.25pm the police attended the premises at Illawarra Road, Marrickville where they saw the offender on the footpath outside the common entry of the property. He was arrested and cautioned. He was searched before being placed into a caged vehicle. He was asked whether he had anything on his person he should not have; he said there was a knife in his bag which he carried for protection after recent threats. A small brown handle folding knife was found in his black shoulder bag; the blade was of 10 centimetres length. He also had the Myer one Gift Card which is the subject of the goods in custody charge. He declined the opportunity to participate in an electronically recorded interview.

The Offender’s Antecedents

45. He has a record of antecedents that extends to nine pages. His first court appearance was in a Children’s Court in October 2004 for receiving stolen property and having goods in custody. Then in February 2005 he was charged with damaging property and in June 2007 he was charged with destroying property or damaging property, having custody of a knife in a public place, and entering inclosed lands.

46. In March 2011 he was charged with assault occasioning actual bodily harm and with common assault. In January 2013 he was charged with driving while his licence was suspended, driving an unregistered motor vehicle, driving with middle range prescribed concentration of alcohol, using an uninsured motor vehicle and resisting an officer in the execution of duty.

47. In April 2015 he was charged with contravening an apprehended domestic violence order and with remaining on inclosed lands.

48. In March 2015 he was charged again with that offence upon being called up for breaching the s 9 bond which had been earlier imposed and on this occasion he was fined and required to enter another s 9 bond.

49. In May 2015 he was charged with contravening an apprehended domestic violence order; s 10A Crimes (Sentencing Procedure) Act 1999 was applied.

50. In November 2015 he was charged again with contravening an apprehended domestic violence order and was required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999.

51. Then in December 2015 he was charged with having sexual intercourse with a person between the ages of 14 and 16 years, three counts. For this conduct he was sentenced to imprisonment in the aggregate of three years and ten months including a non-parole period of two years. That commenced on 8 December 2015; the custodial component ended on 7 December 2017 and the parole period ended on 7 October 2019. It was within months of the expiration of that parole that he committed the present offences.

52. There are street offences, further offences of damaging property and entering inclosed lands and traffic offences that had him before the Court. Apart from that long sentence of imprisonment that he received for the sexual assault offence he has had the benefit of conditional liberty and various sentencing options no doubt with a view to facilitating his rehabilitation.

Victim Impact Statement

53. There is a victim impact statement which does not aggravate the offending or the sentence that is to be imposed upon the offender upon the assessment of the objective and subjective material before me, but it does give the Court a measure of insight into the impact of these episodes of misconduct upon her.

54. She speaks of the events on this night in the following terms:

“That night I was scared by the action of seeing him unexpectedly, but at no time did I feel aggression or violence against me, he never threatened me, and when I asked him to leave, he immediately left without making arguments or violence, he left the door.

The next day I was confused and disorientated. I went to the police to express what had happened at that time, I’m very grateful for the help.”

55. She then spoke of the time that she spent with the offender, that he was never aggressive or violent. She never accused him of being violent; she had not seen a knife the night that he entered her apartment.

56. She has been given advice that he risks many years in prison for what happened and she expresses a view that it is not fair to him if that should occur. She thought a lot about what has happened and she has looked at things with broader criteria, using her words.

57. She understood his drug problems which generated anxiety and taking that into consideration she believes that he needs help and support and treatment to improve his life, and that with help and treatment he can become a better person and reintegrate into society.

58. She has continued with her life, she has continued studying and working and leading a quiet life, and she asks that the Court take this into account in the assessment of a sentence that he must suffer.

The Offender

59. The offender has not given evidence and the Court is left to assess representations attributed to him without the benefit of having those provided to the Court under oath or affirmation or tested by cross-examination.

60. The circumspection required of such material was described by Smart AJ in R v Qutami [2001] NSWCCA 353, but more recently in Imbornone v R [2017] NSWCCA 144 Wilson J at para [57] provided an analysis of authority including Qutami reiterating the need for untested out of court statements made to third parties to be treated with caution. I do not need to repeat the subparagraphs provided by her Honour there to assist sentencing courts. It is the fact that it is an inordinately difficult task to assess the veracity of self-serving representations in psychologist’s reports and so caution is required. Careful analysis must be undertaken before one might act upon what is there attributed to him.

61. I do not doubt that Dr Christopher Lennings who has provided a report has faithfully represented what the offender has said to him. The question that arises though is the weight that one attributes to the opinions that are offered in light of what I find to be serious misconduct upon which the offender engaged in circumstances where it was not in any way justified.

62. I am not satisfied that the offender has an appropriate level of insight into the extent of his wrongdoing but I find comfort I must say in paragraph 23 in Dr Lennings’ report which includes the acknowledgement by the offender that he has a dependent personality and, to paraphrase, cannot cope with rejection.

63. The report includes reference to his upbringing. He asserts shock that he did not stop and consider what he did. He represented contrition and remorse. He spoke of his misuse of Ice at the time of the offence. He said that he was upset about the relationship failure and that he had trust issues about it consistent with what is written in paragraph 23 to which I shall come.

64. He thought that there was a way to reconcile but his drug use prevented him from achieving perspective and his delusion seemingly paved the way for his irrational actions. He now knows what he should have done and that is that he should have stopped to think but did not. That is but one step in the process one would think of what he ought to have done when this woman quite properly decided she wanted to end the relationship; that was her choice, a decision in which he had no right to exercise the power that he sought to impose.

65. In para 6 Dr Lennings wrote;

“In relation to his record I made the observation he seems to act impulsively and Karl agreed with that, identifying that impulse control is an issue he has struggled with before. He says he is not sure if he is typically impulsive, but identified that impulsivity had got him into trouble. To my mind Karl is clearly a person who characteristically has difficulties with impulsivity.”

66. Merely looking at a list of offences recorded on an antecedent record is in my view not an entirely sound basis to conclude that someone is impulsive. A closer analysis would be required of the facts and circumstances in which each of the offences was committed before one could come to that view.

67. The question then arises as to whether or not impulsivity is an issue in respect of all of those incidents. Indeed when it was observed by Dr Lennings the offender, according to the import of this paragraph, readily grasped the proposition that was advanced to him. I find no sound basis from which to conclude that the offender has been a typically impulsive person throughout his history of offending.

68. The report continues with reference to assistance to manage his drug use when he was on the parole that ended shortly before he committed these offences. He expressed shame that he did not continue to use the strategies that had been available to him and resorted to drugs and suffered what is said to be a rapid psychological decline from his use of methylamphetamine, referred to as “ice”.

69. It is said that this should be brought to account to mitigate his wrongdoing, and that he has been to some extent a victim of the misuse of drugs arising from his circumstances through his formative years. I do not accept that submission. I am satisfied on the material I have that he made lifestyle choices throughout his years preceding this offence and they included the misuse of prohibited drugs; he now cannot be heard to offer that as some mitigating explanation for this behaviour.

70. I have not overlooked what was said by Wood CJ at CL and Simpson J in R v Henry (1999) 46 NSWLR 346. The judgement of Wood CJ at CL included a reference to addiction when not a matter of personal choice but attributable to some other event for which the offender was not primarily responsible. Simpson J referred to origins of drug use and social disadvantage, poverty and emotional, financial or social deprivation. In this instance the history attributed to him by Dr Lennings includes what seemed to be a sound relationship between his mother and stepfather, who he identified as his father until the relationship failed and divorce followed, and his decision to leave home because his mother was too limiting in her requirements of him whilst living in her home.

71. He chose to take a freer lifestyle, with perhaps less socially responsible people and engaged upon the misuse of drugs, ultimately leading to the criminal record that he has including the current offending.

72. He is attributed with an explanation for the knife by Dr Lennings. He said he returned to the victim’s home the following day with the knife because he had an altercation with a person a little while earlier when living in that area and was worried about his safety.

73. This was notwithstanding that he was engaged in a conversation with the police who wanted him to make contact with them and yet he still went there with the knife. I do not find that he went there with the knife as a weapon to be used within the context of this misconduct, but the fact remains he should not have had the knife. He must have known that it was wrong to do so against the history that he has including his past offence of possession of a knife in a public place.

74. The credit card he explained as having come from a woman with whom he had an assignation, so described. He believes that the woman had it after it was stolen from somewhere else and it came to him as a result of that brief perhaps meaningless association as he has described it.

75. He said his family was a very loud family. They had not a lot of money. They grew up in the country but his mother provided well. His biological father was never there but he has had some contact with him since. He described him in less than flattering terms as a nasty bloke in contrast to his stepfather who was a highly ethical man. He described his biological father as a disturbed no hoper.

76. The use of methylamphetamine has impacted upon him. I accept that. The question I have though is the extent to which that mitigates his punishment.

77. He continues to have reasonable contact with his mother. He referred to his mother and stepfather as proper people. He departed home at the age of 16 because of the restrictions his mother placed upon him, which by reference to what followed thereafter he clearly needed.

78. His education was limited it appears but he did gain some employment. He moved in with his grandparents for a period of time which is said to have been a good choice. He has been a user of cannabis, which he used to excess. He followed a dysfunctional lifestyle with his associations with other undesirable individuals.

79. There is reference to him having quite severe concussions and reference to some low grade but repeated minor head injury that further compromises his impulse control. There is no further material upon which to make any assessment regarding that. There is reference to him feeling quite suicidal in late age adolescence. There were no actual suicide attempts. He said that he was almost at the point. Dr Lennings suggests he was probably depressed but notwithstanding this the offender asserted himself as a strong-minded person. Some people have indicated to him that he suffered from anxiety and he used meditation to facilitate the management of that. He discussed his history of alcohol and other drug use and the contribution that that has made to what is embraced by the offender as impulsive behaviour.

80. Ultimately I accept what was said at para [23] which seems to me to be the answer to these episodes of misconduct and I will quote:

“Karl says that in looking back at his relationships, he was quite attentive, and thought he could be altruistic. He says he falls heavily in love, quickly and seems to submerge himself in the relationship and lacks balance. His need for a relationship is seemingly strong, although he says he can be happy on his own. He says he recognises he pushes too hard, too fast when he is in a relationship and likely has dependency needs. He lacks insight into, or an ability to control. Once in a relationship he gets quite distrustful, and especially when drug-affected he can get quite paranoid about the potential for betrayal or being abandoned. In that context his offence can be understood as a perpetuation of poor self-control caused by unmet dependency needs, impulsivity and the debilitating effects of severe problematic drug use.”

81. Notwithstanding that I have not accepted all that the psychologist has written sympathetically regarding this offender, it seems to me the summary contained in that paragraph is a fair indication of the reason why he is sitting in gaol now awaiting sentence.

Submissions

82. The submissions made on behalf of the offender are that this misconduct is right at the low end of the range of objective seriousness. I do not agree with that, but it is below mid-range. I accept that it does not sit at the low end of the range of objective seriousness; it is at a point somewhere between the low end and the mid-range. It is always a matter of judgement where to place an offence on the scale of seriousness but doing the best I can that is where I find it to be.

83. The Crown correctly points out that this is an episode of domestic violence offending. The offence occurred at a time when the victim was entitled to feel safe at home in her bed at night. The offending was unsophisticated I accept, and he was driven, it would appear, by this emotional intensity arising from a misguided depth of feeling that he had for this young woman. I agree that he displayed disregard for the personal boundaries and the sanctity of the victim’s home.

84. The Form 1 offence I note involved a series of repeated telephone calls and text messages. They were excessive on any view and when he did not get his own way he became rather more offensive and perhaps even threatening.

85. The offence occurred in the victim’s home where she expected to feel safe. His record of prior convictions does not aggravate the objective gravity of the offending or the sentence to which he is exposed but it does inform the extent to which specific deterrence must be given appropriate attention. I agree with the submission made on behalf of the offender that this does not rise to the standard of cases discussed in Veen v R No 2 [1988] HCA 14, but he certainly does not have any entitlement to leniency in this case. Required is consideration of the need to protect the community from him. He simply has to learn that if he forms a relationship with a woman and she chooses not to continue with the relationship that is her right and he has no basis upon which to challenge her decision and force himself upon her, as he did in this case.

86. It might be said that he has a continuing attitude of disobedience to the law. His record reveals as much in my view but, as I said, I am not satisfied it reaches the level of the case discussed in Veen No 2 ibid.

87. Domestic violence offences must be treated as serious. There is in any period multitudes of examples where domestic violence offences have resulted in great tragedy. Fortunately this is not one but the Court has an obligation to address such misconduct at the appropriate level once it is presented with such a case.

The Sentence

88. I am at the point where I can dispose of the matter.

89. Upon each of the offences to which the offender has pleaded guilty he is convicted. The Form 1 offence I have taken into account for the determination of sentence on the principal offence.

90. For the principal offence of aggravated enter the dwelling house with intent to intimidate I have noted what was said about the maximum penalty for the offence of intimidation were it prosecuted as a serious indictable offence alone, and that five years puts it on the lower end of the range, but one must also look at the circumstances of the offending and synthesise that with the fact that this serious indictable offence is on the lower end of the range of available penalties were it prosecuted alone.

91. I have already indicated where I find the offence sits on the range of objective seriousness.

92. Allowing a 25% discount for his plea of guilty I indicate as an appropriate sentence 3 years and 3 months. The discount is slightly greater than 25% ultimately to achieve that period. I have taken into account the Form 1 offence as I have said.

93. For the offence of custody of a knife in a public place I specify an indicative sentence of 6 months and for the goods in custody offence a sentence of imprisonment of 3 months. Again in those offences I have applied a 25% discount to the synthesis of objective and subjective material. The overall sentence I impose in aggregate is one of 3 years and 6 months including a non-parole period of 2 years and a period on parole of 1 year and 6 months. I find special circumstances.

94. The sentence commences on 15 January 2020. The non-parole period shall expire on 14 January 2022. The additional period will expire on 14 July 2023. Thus the aggregate sentence is 2 years non-parole from 15 January 2020 to 14 January 2022 when he will be eligible for parole, which will extend for 1 year and 6 months to expire on 14 July 2023. I will leave the exhibits on file.

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Decision last updated: 13 November 2020