R v Matthew James RICKARD

[2006] NSWDC 150

CITATION:	R v Matthew James RICKARD [2006] NSWDC 150
HEARING DATE(S):	14/12/2006
JUDGMENT DATE:	14 December 2006
EX TEMPORE JUDGMENT DATE:	12/14/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [22] & [23]
CATCHWORDS:	Criminal Law - Sentence - Intimidate with intent to cause fear of physical or mental harm
LEGISLATION CITED:	Crimes Act
PARTIES:	Crown Matthew James Rickard
FILE NUMBER(S):	06/11/0621
COUNSEL:	R.C. Pontello (Offender)
SOLICITORS:	NSW DPP Matthw Hamond Solicitors

SENTENCE

1 HIS HONOUR: One of the most important features to be considered when determining an appropriate sentence for an offender is the likelihood that that offender will commit further offences. That matter is of course relevant to the extent to which the sentence needs to reflect an element of personal deterrence. It is also relevant to things such as retribution. In turn one of the most important features in assessing the likelihood that an offender will commit further offences is the extent to which the offender accepts responsibility for what he has done and acknowledges the extent to which it is a breach of the law.

2 In this case the offender has pleaded guilty to an offence of intimidating with intent to cause fear of physical or mental harm. To that extent he accepts his responsibility for committing a criminal offence, but in many other areas he demonstrates a remarkable lack of candour. He demonstrates a lack of insight into the wrongfulness of his conduct and he frankly has tried to pull the wool over my eyes. I will explain in more detail later why it is that I have reached that conclusion.

3 The offender and a woman by the name of Clare Talbot began a relationship in about February 2003. The statement of facts records that the relationship began to experience difficulties soon after it commenced. One of those difficulties involved the offender committing an offence of assault occasion actual bodily harm upon Ms Talbot on 29 October 2003. He was placed on a bond for that offence. He was in fact on a bond at the time of the commission of the offence for which he is now to be sentenced which he committed on 5 March 2006.

4 On that day Ms Talbot had been receiving a number of, what were described in the statement of facts as, prank calls. Ms Talbot had been out with a man by the name of Boyd. When they got back to Ms Talbot’s home they discovered that the lights did not work. She checked the power box outside and discovered that the main switch had been turned off. She turned the power back on and she and Mr Boyd entered the house. He left his leather jacket on a lounge and then left the home to buy cigarettes. Ms Talbot did not lock the door after him so that he could get back in. About ten minutes later Ms Talbot heard her dogs barking at something in the front room of her house. She walked to the front room to find the offender there. She, not surprisingly, told him in emphatic terms to leave her home. The offender simply said “Who’s here?” He walked past her and began checking out the various rooms. Clearly, he was intending to identify whether Ms Talbot was with another man. Despite Ms Talbot continually telling him to leave her house he did not do so.

5 When he saw Mr Boyd’s jacket in the front room he picked it up and said “Whose jacket is this?” Ms Talbot said quite accurately, “None of your business.” The offender took the jacket and left the home. Ms Talbot dialled 000 straight away. The offender was arrested shortly thereafter when he went to Redfern Police Station.

6 The offender claims to the author of the presentence report tendered in this case that he was concerned about Ms Talbot’s health and that is what it was that prompted him to go to her home. I reject that in emphatic terms. It is a completely dishonest statement. What the offender was concerned about was whether Ms Talbot was with another man. He was, not to put to finer a point on it, jealous. A person who is concerned for another’s welfare, upon seeing that person does not say whose here but says how are you.

7 The statement of facts records that the accused was not in the least interested in Ms Talbot’s welfare or health. A person interested in another person’s health does not search that person’s home before leaving with a jacket obviously belonging to a man. The author of the presentence report seems to have accepted the offender’s version as to what he was doing in Ms Talbot’s home. I do not. There is other evidence to suggest the offender is a person who will tell lies in order to advance his position depending on how he considers the listener will respond to his statements. To the author of the presentence report he says that he has ceased all contact with the victim and has accepted that the relationship cannot continue. I know that the former of those statements is not true and I have grave suspicions that the latter is also not true.

8 Ms Talbot wrote a letter addressed to me. It was tendered by Mr Pontello. It says

“I have seen Matthew since the incident”.

9 The offender was also interviewed by Dr Robert Hampshire. In contrast to the suggestion the offender made towards the author of the presentence report, he told Mr Hampshire that he continues to carry the hope of marrying Ms Talbot, although he is understandably cautious about moving forward with her.

10 It is apparent that the author of the presentence report interviewed Mr Rickard’s close friends, or at least one close friend. It was said that he has conservative 1950s values. Clearly, those values do not extend to a simple acceptance of responsibility for his misconduct.

11 Mr Pontello in his written submissions suggests that it is a mitigating feature of this offence that the intimidation did not involve any assault upon Ms Talbot. It is not a mitigating feature of one offence that a more serious offence was not committed. This offence was a very serious one. Ms Talbot was entitled to feel safe in her own home, free from the unwanted attentions of the offender who simply could not accept that his relationship with Ms Talbot was over.

12 The letter from Ms Talbot, as well as telling me that the offender had lied to the probation and parole officer regarding the lack of contact between them, also says that the offender has accepted that the relationship is over and that they have moved on with their own lives separately. Again, I have grave suspicions that that is simply the offender saying he realises what should be said in order to receive a lower sentence.

13 Mr Pontello relies also on the fact that this is an offence that could be dealt with summarily. That is the case and I will take that matter into account. In this case I will not impose a sentence which extends beyond the jurisdictional limit of the Local Court.

14 I had intended to mention, but had forgotten to do so until now, that I am also satisfied beyond reasonable doubt that the offender was the one who switched off the power to Ms Talbot’s home. I find, that that is the only reasonable possible explanation for the circumstance that Ms Talbot had found that her power had been switched off and that shortly thereafter the offender turns up in her home, unwanted and uninvited. I note in this context that the offender is an electrician.

15 The offender pleaded guilty to this offence at what is apparently an early stage and so I will discount the sentence I would otherwise have imposed by twenty-five per cent to reflect that fact. I do not accept that the offender is remorseful. I do not accept that he has good prospects of rehabilitation and I do not accept that he is unlikely to re-offend. Those three findings are based on the matters that I began these remarks on sentence with, that is a complete failure on behalf of the offender to fully accept what he has done.

16 This was planned activity. It appears that the offender was laying in wait for Ms Talbot to return home. He had switched off the power and waited until he could gain entry to the home without Ms Talbot realising it. It was also aggravated by the circumstance that the offender was on a bond at the time. That supervision under that bond was terminated only a relatively short time before the offender committed this offence.

17 It is to be noted that when the offender attended a St Vincent De Paul program targeting domestic violence he was withdrawn from the program after thirty-two weeks due to his pattern of disruptive behaviour and lack of identified progress in developing insight into his offending behaviour. However, he appears to have improved his attitude once he received individual counselling which he attended as directed.

18 The offender has had a number of relationships over the years. I summarise them by saying that it appears that he has been unlucky in love. That may explain, but in no way excuses, what appears to have been his excessive behaviour involving Ms Talbot on the night of this offence. He is employed and appears to have been a man of otherwise good character. I will take that matter into account significantly in his favour. There are suggestions in Dr Hampshire’s report that the offender was recovering from a period of depression, which at the time of this offence was not being treated by medication.

19 I have given anxious consideration as to the form of the punishment that I should impose in this case. It is accepted by Mr Pontello that a custodial sentence of some form is required. I accept that that is the case. I have determined the appropriate sentence and then turned to my mind to the way in which that sentence should be served.

20 This is a case where there needs to be a very significant element of personal deterrence visited upon the offender. I do not consider that he, himself, recognises how wrong his conduct was. It needs to be brought home to him by a significant sentence therefore, that if he continues to act in a way that he does not really accept is wrong, he will be punished and punished severely.

21 I gave serious consideration to imposing a sentence of fulltime custody upon the offender. However, I will not do so. The offender’s good work history and his lack of serious earlier offending are the two features which have persuaded me not to impose a sentence of fulltime custody. But the offender should consider himself very lucky at the sentence I will shortly impose. I have got no doubt that some would regard the sentence I am about to announce as being lenient in light of the offender’s attitude towards the offence itself.

22 The offender is sentenced to imprisonment. I set a non-parole period of eighteen months with a head sentence of two years. That sentence is to be served by way of periodic detention. The offender is to attend the Parramatta Periodic Detention Centre on Saturday week the date of which is 23 December 2006 in order to commence serving his sentence. That is the sentence I should make clear for the offence of stalking.

23 For the offence of larceny where I note the jacket was returned I will sentence the offender to imprisonment for six months. That is a fixed term. It is also to be served by way of periodic detention concurrently with the other sentence.

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