R v Mather

[2019] NSWDC 210

District Court

New South Wales

Medium Neutral Citation:	R v Mather [2019] NSWDC 210
Hearing dates:	28 May 2019
Date of orders:	28 May 2019
Decision date:	28 May 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	2 year sentence of imprisonment to be served by way of Intensive Corrections Order
Catchwords:	CRIME — Property offences — Break, enter and commit serious indictable offence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 SZ v Regina [2007] NSWCCA 19
Category:	Sentence
Parties:	Regina (Crown) Leanne Mather (Offender)
Representation:	Mr Howell (Crown) Ms Davids (Offender)   Director of Public Prosecutions (NSW) (Crown) Chandler Legal (Offender)
File Number(s):	2018/00295040
Publication restriction:	Confidential portion of this judgement has been redacted in this judgement and published in a separate judgement, [2019] NSWDC 211

EX TEMPORE Judgement (REVISED)

1. ...(recording equipment not turned on).. were issued at court in respect of it and I would expect there to be no action taken in any event.

2. As noted above the recording equipment was not activated until shortly after I commenced delivery of my ex tempore judgement earlier today. The judgement was transmitted to me as a matter or priority to be perfected and available to the parties in a trial to commence on 29 May 2019 and in which the offender is to be called as a witness.

3. I have reconstructed the preliminary portion of these reasons drawing upon the material before me.

4. Leanne Mather pleaded guilty in the Local Court and was thereupon committed for sentence for an offence contrary to s 112(1) Crimes Act 1900 expressed thus: between 10:30pm on 24 April 2016 and 6:10 am on 25 April 2016 at Melrose Park, did break and enter the dwelling house of the family White and did steal adults and children/s wallets containing credit cards, handbags and a lap top computer the property of the family. The maximum penalty is imprisonment for 14 years. There is no standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999.

5. She has adhered to the plea of guilty and asks that the court take into account nine offences of obtain property by deception contrary to s 192E(1)(a) Crimes Act, with a maximum penalty of imprisonment for 10 years, although there is no doubt that these would have otherwise been dealt with summarily exposing the offender to a maximum penalty in each case of imprisonment for two years and a fine represented by 100 penalty units.

6. The additional offences will be taken into account in accordance with the judgement of the Chief Justice in Attorney General’s Application under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. Although she has avoided separate punishment for these offences she has provided utility for which she must have benefit. The additional offences will require an increase in the sentence that would have been applied to the principal offence were it standing alone to reflect the need for appropriate weight to be given to personal deterrence, and to reflect the community’s entitlement for retribution and denunciation for the extent of the misconduct.

7. She has spent no time in custody.

8. The offender was subject to a bond pursuant to s 10 Crimes (Sentencing Procedure) Act at the time of the offence. I do not propose to take action in respect of it. It was all but concluded when she committed these offences.

The Facts

9. The facts upon which this prosecution is brought are set forth in an agreed statement included in the Crown bundle. The family living in Melrose Park consists of a husband and wife and four young children. Their premises are of two stories with the bedrooms on the top floor. On the evening of the Thursday 24 April 2016, the husband parked his wife’s Mazda 3 on the street in front of the residence and locked it before entering his home and retiring to bed. At 10.30pm he checked that the sliding doors at the rear of the house were locked.

10. That same evening, Corey Chamberlain, who is to be tried in this court tomorrow, and Corey Smith, who has already been sentenced by his Honour Judge Wilson SC, were partying in Bidwill, New South Wales, where the offender was also. The home was of a mutual friend of Chamberlain and Smith and the offender. The mutual friend, or a mutual friend, it is not entirely clear whether it is the same person, but whatever the case, this person asked the offender if she wanted to drive Chamberlain and Smith around to “scope out houses”. The friend said that of whatever they get the offender would get half. Chamberlain and Smith said they were looking for a “flash house”. The offender drove a yellow Mazda with Chamberlain in the front passenger seat and Smith seated behind him in the rear. They eventually settled upon Melrose Park for their crimes. She parked the car and watched as Chamberlain and Smith entered different houses. Between the evening of 24 April 2016 and the early hours of the following day Chamberlain and Smith entered the victim’s premises. The offender waited in the car for approximately 40 minutes before the others ran back carrying a laptop and multiple handbags. She drove them away.

11. Chamberlain and Smith then asked her to return to the residence. She did so. Smith alighted from the car and opened the black Mazda belonging to the family at the front of the premises. Chamberlain told the offender, “We are stealing a car.” Smith drove the vehicle around the corner but stopped, he said, because it was “red hot”. He wiped his fingerprints from the car and left it.

12. About 6am on the 25 April 2016 the mother of this victim family noticed the back door was open and two drawers beside the front door were also opened. She found her husband’s wallet containing identification and bankcards, his keys and her handbag containing her wallet and identification and bankcards, and a garage door remote and a key to the family’s other vehicle had been taken. The husband noticed that the black Mazda was missing from the front of the house, police were contacted, and they also made contact with their banks. Thereafter the offences 1 through 9, listed on the Form 1 were committed.

13. With the offender driving, Chamberlain attended eight service stations to use the stolen credit cards to purchase cigarettes and other items. At two locations Smith went inside to make the purchase while Chamberlain and the offender remained in the car. At other locations an unknown female made the purchases while Chamberlain waited in the car with the offender. It was agreed that the group would purchase cigarettes to sell later.

14. The first location was a Caltex service station at Rydalmere where one of the stolen credit cards was used to obtain property to the value of $81.80; the second at a 7-Eleven, Emerton where one of the cards was used to obtain property to the value of $80.97; the third at a 7-Eleven at St Marys where a stolen credit card was used to obtain property to the value of $65.98; the fourth a BP Connect at St Marys where property to the value of $67.98 was obtained; the fifth at a 7-Eleven at St Marys where property to the value of $26.99 was obtained; the sixth at a 7-Eleven at Colyton where property to the value of $74.46 was obtained; the seventh at a Coles Express at Colyton, property to the value of $98.97 was obtained; the eighth the 7-Eleven at Emerton, property to the value of $65.98 was obtained; and finally a United Service Station at Lethbridge - I take that to be “Lethbridge Park” - where property to the value of $17.60 was obtained. In total there were three bottles of Coca Cola and several packets of cigarettes purchased to the total value of $634.73.

15. At some point later that morning Chamberlain and Smith directed the offender to an underground carpark in Carlisle Avenue at Mount Druitt where they disposed of some of the stolen items from the break and enter. The offender later told the police where to find those items and items were in due course recovered.

16. CCTV was viewed from the various service stations in which the yellow Mazda was depicted at the time when the transactions occurred.

17. On 19 May 2017 the offender participated in an interview and made admissions. I have, included in the Crown bundle, a statement by the offender on 19 May 2018 adopting the content of the transcript of the electronically recorded interview in which she participated which extends over 58 pages and 574 questions. She provided another statement on 25 September 2018 after she participated in an identification procedure in the course of which she identified an image of the offender Chamberlain. She is to give evidence, as I said, tomorrow in a trial when Corey Chamberlain is to be presented.

The Offender

18. The offender is 35 years of age. She has a record of antecedents that will impact upon the extent to which she might have otherwise had leniency, and it also addresses the need for appropriate weight to be given to the aspect of specific deterrence. She was first in a court in September 2014 in New South Wales at Blacktown for common assault and damaging property. In August 2016 she was in court for intimidation. In December 2006 she was dealt with for having driven whilst her licence was suspended. In April 2015 she was dealt with for driving once again whilst her licence was suspended and using an unregistered registrable motor vehicle. She was before the court again in August 2017 for driving whilst suspended and convicted in her absence. That was brought back before court on 27 August 2017 when she was fined and disqualified for twelve months. Up until that time she had been extended leniency by way of s 10 and then s 9 Crimes (Sentencing Procedure) Act. Her record, and the fact that she was on conditional liberty at the time of this offending, are both aggravating factors but not so as to increase the objective gravity or the sentence that would otherwise be proportionate to the misconduct, but as I noted it informs the question of specific deterrence and the extent to which leniency might be offered to her for this misconduct.

19. There is one report in the bundle from a Community Corrections Officer at Mount Druitt. This informs me that there was insufficient time to provide the report, however that has been remedied since and I now have a Sentence Assessment Report in the nature of a Duty Report.

20. I might interpolate here that it was necessary to take strident action because of the trial in which she is to give evidence commencing tomorrow. It was listed to commence on Monday, and it was anticipated that her sentence proceedings would have been completed but because of her failure to attend to her obligations were included for the purpose of the Sentence Assessment Report it could not; the matter could not be completed before today. It was at my request that the registry make contact with the Community Corrections Office at Mount Druitt for a court Duty Report, for which there are procedures in place that had to be circumvented to ensure that a report was available today. I am grateful to Community Corrections for the efforts made to ensure that this matter could be resolved today.

21. The report is consistent with a psychiatric assessment which I have before me. The report tells me of her present arrangements living with her aunt and uncle in stable and supportive accommodation, both of her parents suffer from mental health issues and live in New Zealand, the offender has a 12 year old son who is in full-time care with his father, she has no contact with him at this time due to her methylamphetamine use and mental health issues with which she has been afflicted since the age of 19 and for which she has not received treatment until recently. She is now linked with a mental health service and is taking prescribed medication. She has had the mistaken view that methylamphetamine, also known as ice, is beneficial to her for alleviating the symptoms manifested by her mental health condition, and according to what is contained on the psychiatric assessment report she has failed to maintain her prescribed medication and in place of it used methylamphetamine. This was part of the explanation for her misconduct on this occasion. Although it was represented to her that she would receive half of whatever the others obtained, in fact she received $50 and the promise of free methylamphetamine.

22. Notwithstanding the history of mental health and use of prohibited drug she has been in constant employment for the past seven years in what I would have thought to be a role that required a measure of skill and capacity.

23. She agreed with the facts that have been presented against her, she felt as if she was accepted into this group of offenders when they asked her to drive for them, she was given methylamphetamine without cost, and participated believing that she would receive more. She represented herself to be naïve at the time and has since thought about the impact upon the victims.

24. She would be a worthwhile candidate for supervision which would include monitoring her engagement with her treating psychologist and/or psychiatrist, referral to a drug counsellor for relapse prevention, and participation in the cognitive behavioural change module targeting identified areas of risk, needs, and responsivity issues. She is suitable to undertake community service according to the assessment.

25. The psychiatric report was provided by Alexey Sidorov on 11 May 2019. I found the report helpful. I have not overlooked that the offender has not given evidence before me and that I should use appropriate circumspection when assessing representations attributed to her where they have not been given under oath or tested by cross-examination, but the content of the extensive ERISP and her demonstrated contrition and willingness to assist in the prosecution of Chamberlain leads me to the view that I could find comfortably that she is contrite and would take steps necessary to facilitate her rehabilitation.

26. The psychiatric assessment includes her reported feelings of anxiety and paranoia from her fear that her aunt and uncle would know that she was using methylamphetamine which she said made her feel calmer. She spoke of her past experiences of when she thought people were out to get her and the television was communicating with her and her perception that she was psychic and could talk with a different voice. She was diagnosed with schizophrenia at the age of 19; she has had multiple psychiatric admissions, three of them in New Zealand and four after coming to the Australia. These included the Nepean Hospital, Bungaribee House at Blacktown Hospital, and Concord Hospital. Her last admission was at Concord Hospital one month before the preparation of this report. She has been prescribed medication in the form of Largactil and Effexor but she has not taken them since leaving the hospital. Prior medication included Paliperidone, Abilify, Risperidone and Quetiapine; she also recalled having taken Effexor in the past. She spoke of having to take off time from work because of anxiety but only for a couple of days at a time. She complained of suffering from low moods with no energy; her previous thoughts of self-harm did not carry with them any plans or intent. There was some episode where she pushed her son’s stepmother who fell over during an argument at her ex-partner’s house; her son currently lives with his ex-partner and step-mother. There was a psychiatric appointment at Blacktown Community Mental Health team but she failed to attend because she slept in and was planning to reschedule.

27. In New Zealand she tried methylamphetamine on three occasions and then began to experience strange sensations of depression and feeling anti-social but in recent years she thought it was helping her with anxiety; she smokes the drug, does not inject it, she said she has been using daily for the past three and a half years at a cost of $300 per fortnight, she has used intermittently from the age of 16, she would drink in a binge pattern on occasions, and has also shown herself to be at risk of gambling, including losing up to $700 in one night.

28. It is ultimately the diagnosis that she is schizophrenic. The history provides strong support for the diagnosis including that her parents are burdened also with that illness. The psychiatrist is of the view she seems to have limited insight into her illness and the need for treatment and her judgement is impaired, which I find to be the product of her failure to comply with her medication and her resort to prohibited drugs in place of it. She has met the diagnostic criteria for schizophrenia dating back to when she was 19 years of age; the Doctor refers to a failure to comply with her treatment and medication and the affliction of her parents with schizophrenia. The Doctor’s view is that a community treatment order would be warranted to ensure that she was compliant with medication that could be provided by way of depot injection. He also wrote;

“It is positive that Ms Mather has been able to maintain a job over a protected period and be able to function to a degree in the community whilst suffering from a chronic psychotic illness. That said, however by virtue of her condition, is likely that is a vulnerable individual who would be suggestive and taken advantage of by others for a variety of purposes”.

29. I am satisfied that that explains her participation in this crime and circumstances as described to me.

REDACTED - SEE [2019] NSWDC 211

The Sentence

30. I have taken into account the additional offences on the Form 1 and I shall certify the document to confirm that I have done so.

31. I have applied a discount in accordance with the decision in SZ, ibid.

32. The line in s 5 Crimes (Sentencing Procedure) Act was crossed in the misconduct upon which the offender engaged. I am satisfied that all the aspects of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act are engaged including general deterrence, specific deterrence, denunciation and the recognition of harm and the need to provide protection from the offender lest she were tempted to embark upon such misconduct again, accepting that she was a person who could be compromised and led into misconduct that brings her before the Court today.

33. Applying the discount to the sentence I would have otherwise imposed I am satisfied that a sentence of imprisonment for two years would be appropriate, but the sentence may be served by way of an intensive corrections order in the community.

34. I have had regard to s 66 Crimes (Sentencing Procedure) Act and the requirement that community safety must be of a paramount consideration when deciding whether to make an intensive corrections order. In my assessment, serving the sentence by way of an intensive corrections order is more likely to address the offender’s risk of re-offending, such as it is. I have also considered the contents of s 3A Crimes (Sentencing Procedure) Act. The offence is one for which an intensive corrections order is available.

35. The offender is convicted.

36. I impose a sentence of imprisonment for 2 years to be served by way of an intensive corrections order in the community. The sentence shall commence today.

37. The standard conditions specified in s 73 Crimes (Sentencing Procedure) Act apply and in this regard the supervision identified in the court Duty Report as appropriate will include monitoring and engagement with a treating psychologist and/or psychiatrist, a referral to a drug counsellor for relapse prevention, and participation in cognitive change modules targeting the identified areas of risk, needs and responsivity issues. It will be a matter for the Community Corrections officer given the task of supervising the offender to address her needs as they might be from time to time over that period of the order.

30. The standard conditions are that she not commit any offence and that she submit to the supervision, as I have outlined.

31. There are additional conditions that I shall impose in this case pursuant to s 73A Crimes (Sentencing Procedure) Act; they are in subs (2) para (f) and (e), that she abstain from the use of prohibited drugs and from prescription drugs that are not prescribed to her, and she is required to continue with rehabilitation treatment as required from time to time in accordance with the supervision in the areas that I have described for such period as she might require. Upon the material I have it is likely that she will need that for a significant period into the future, if not for the balance of her life.

32. It is imperative that she understands that if she breaches these conditions by resorting to prohibited drugs in the mistaken belief that methylamphetamine provides an adequate replacement for prescribed medication she risks being taken into custody by the parole authorities to serve the sentence in gaol.

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Decision last updated: 29 May 2019